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NOTES  ON 


BILL  DRAFTING 


IN  ILLINOIS 


Compiled  and  Published  by  the 

LEGISLATIVE  REFERENCE  BUREAU 

Springfield,  Illinois 
1920 


r'l, 


[Published  by  authority  of  the  State  of  Illinois.] 


'  .’•V  '  *,  ■, 


NOTES  ON 


ILL  DRAFTING 


IN  ILLINOIS 


Compiled  and  Published  by  the 

LEGISLATIVE  REFERENCE  BUREAU 

Springfield,  Illinois 
1920 


ILLINOIS  STATE  LIBRARY 


29  00609  1276 


[Published  by  authority  of  the  State  of  Illinois.] 


LEGISLATIVE  REFERENCE  BUREAU. 


Governor  Frank  O.  Lowden,  Chairman. 
*Senator  Edward  C.  Curtis,  Grant  Park. 
Senator  Richard  J.  Barr,  Joliet. 
Representative  Edward  J.  Smejkal,  Chicago. 
Representative  William  P.  Holaday,  Danville. 


E.  J.  Verlie,  Secretary. 


*  Deceased. 


PREFACE. 


This  study  has  been  prepared  by  DeWitt  Billman.  It  was  un¬ 
dertaken  at  the  suggestion  of  W.  F.  Dodd  who  made  many  valuable 
suggestions. 

It  is  hoped  that  this  pamphlet  will  be  of  assistance  to  members  of 
the  General  Assembly  and  others  who  have  occasion  to  draft  legisla¬ 
tive  measures  in  Illinois. 

In  addition  to  the  books  listed  in  the  bibliography,  two  publica¬ 
tions  of  the  Legislative  Reference  Bureau,  Constitutional  Conventions 
in  Illinois,  and  Constitution  of  the  State  of  Illinois,  Annotated,  have 
been  consulted  on  questions  of  constitutional  law. 

Legislative  Reference  Bureau. 

E.  J.  Verlie,  Secretary.^ 

Springfield,  Illinois, 

December,  1920. 


'1^ 


TABLE  OF  CONTENTS. 


PAGE. 

The  Problem  of  Constructing  a  Statute .  7 

Title  and  Singleness  of  Subject .  13 

Subject  .  13 

Title  .  15 

When  Laws  Take  Effect .  21 

Arangement  of  Subject  Matter .  23 

Preambles  . * . . .  30 

The  Enacting  Clause .  32 

Construction  of  Sentences....’ .  33 

Provisos  .  37 

Phraseology  .  40 

Tense  . .  40 

Preciseness-ejusdem  generis  .  41 

Indefinite  and  uncertain  standards . ^ .  45 

The  use  of  ‘‘may”  and  “shall”  in  imposing  duties  and  vesting 
discretion  .  53 

Definitions,  the  Construction  Statute  and  some  miscellaneous 
matters  .  58 

Punctuation  .  65 


Effect  of  General  Provisions  Relating  to  Partial  Invalidity,  Liberal 

Interpretation  and  Repeals . 

Partial  invalidity  section . 

Liberal  interpretation . 

Repeals  . 

Practical  Eactors  affecting  Draftsmanship . 

Amendatory  Legislation  . . 

Amendment  by  reference . 

Incorporation  by  reference . 

Acts  expressly  amendatory.  .  .  .  . . .  .  . 

Essential  Points  in  Bill-drafting . 

Appendix  1.  Eorms . ^ . . 

x^ppendix  11.  Bibliography . 

Index  . 


66 

66 

68 

68 

70 

75 

75 

77 

79 

83 

84 
92 


94 


THE  PROBLEM  OF  CONSTRUCTING  A  STATUTE. 


The  discussion  in  the  following  chapters  is  limited  to  what 
has  been  called  the  “mechanics  of  law  making.”  However,  in  this 
preliminary  chapter  it  may  be  useful  to  consider  briefly  the  several 
steps  in  the  construction  of  a  bill  for  introduction  in  the  General 
Assembly. 

In  a  general  way,  the  process  of  constructing  a  statute  may 
be  divided  into  three  parts  : 

1.  The  conception  of  the  legal  principle  to  be  embodied  into 

law ; 

2.  The  selection  of  machinery  or  legislative  expedients  to 

apply  and  make  effective  the  legal  principle ;  and 

3.  The  reduction  of  the  substance  to  words  so  as'  to  convey 

to  the  mind  of  the  reader  the  legal  principles  which  were 

present  in  the  mind  of  the  legislator. 

Legislation  consists  at  the  present  time  in  remedying  evils  and 
making  improvements  in  the  body  of  the  law,  both  statutory  and 
common  law.  Thus,  by  the  common  law,  the  recovery  of  damages 
for  a  personal  injury  suffered  by  an  employe  during  his  employ¬ 
ment  depends  on  the  principles  of  civil  wrongs.  The  legislature  de¬ 
termines  that  recovery  in  such  cases  should  not  depend  on  the  law 
of  negligence,  contributory  negligence,  fellow-servant'  rule,  risk 
of ‘the  employment,  etc.,  but  that  there  should  be  a  scheme  of  com¬ 
pensation  for  all  injuries  incurred  in  the  course  of  employment, 
and  the  change  is  the  basis  of  a  \\Trkmen’s  Compensation  Act.  So 
an  act  legal  at  common  law  may  be  declared  an  offense  by  statute. 
The  common  law  right  of  the  employer  to  contract  has  been  re¬ 
stricted  by  child  labor  laws  and  other  statutory  regulations  affect¬ 
ing  the  hours  and  conditions  of  labor. 

As  to  the  conception  of  the  evil  existing  or  improvement  to 
be  made,  this  is  purely  the  legislative  function.  It  may  be  sug¬ 
gested  to  the  mind  of  the  legislator  by  his  own  experience,  or  by 
suggestion  from  the  experience  or  investigations  of  others,  but 
from  the  standpoint  of  the  making  of  legislation,  it  emanates  from 
the  mind  of  the  legislator. 

The  legislature  i)Ossesses  all  legislative  power  that  is  not  ex- 
])ressly  or  impliedly  withheld  by  the  constitution  of  the  state,  or 
by  the  constitution  of  the  United  States.  In  connection,  then,  with 
the  conception  of  the  legal  principle  must  be  determined  whether 
the  enactment  of  that  principle  is  within  the  limits  of  the  power 
reposed  in  the  legislature.  The  courts  are,  it  is  true,  the  ultimate 
interpreters  of  the  constitution,  and  the  final  arbiters  as  to  the  va- 


8 


lidity  of  laws  enacted  by  the  legislature.  But  members  of  the 
General  Assembly  are  sworn  to  uphold  and  defend  the  constitution 
of  the  state  and  of  the  United  States,  and  certainly  are  under 
a  duty  not  to  enact  laws  plainly  opposed  to  fundamental  con¬ 
stitutional  principles.  This  is  not  to  say  that  the  legislature 
should  always  refuse  to  pass  a  measure  deemed  for  the  public  wel¬ 
fare  because  it  may  be  of  doubtful  validity  or  because,  tested  by 
some  decision  of  the  Supreme  Court,  it  may  later  be  declared  void 
by  that  court.  The  history  of  legislation  in  Illinois  limiting  hours 
of  labor  for  women  is  in  point.  The  act  of  1893  which  prohibited 
the  employment  of  a  female  for  more  than  eight  hours  in  any  one 
day  in  certain  businesses  was  declared  unconstitutional  by  the 
court. ^  One  objection  made  to  the  act  was  that  it  made  an  im¬ 
proper  classification  and  discriminated  against  employers  and  em¬ 
ployes  in  certain  businesses.  But  the  act  is  also  condemned  be¬ 
cause  it  is  an  “attempt  to  abridge  unreasonably  the  right  to  make 
contracts.”  In  the  language  of  the  court,  “it  substitutes  the  judg¬ 
ment  of  the  legislature  for  the  judgment  of  the  employer  and  em¬ 
ploye  in  a  matter  about  which  they  are  competent  to  agree  with 
each  other.  It  assumes  to  dictate  to  what  extent  the  capacity  to 
labor  may  be  exercised  by  the  employe,  and  takes  away  the  right 
of  private  judgment  as  to  the  amount  and  duration  of  the  labor 
to  be  put  forth  in  a  specified  period.”  To  the  contention  that  the 
act  should*  be  sustained  “as  an  exercise  of  the  police  power  upon  the 
alleged  ground  that  it  is  designed  to  protect  woman  on  account 
of  her  sex  and  physique,”  the  court  replies  that  as  a  “citizen”  and 
“person”,  woman  “is  entitled  to  the  same  rights,  under  the  con¬ 
stitution,  to  make  contracts  with  reference  to  her  labor  as  are 
secured  thereby  to  men.  .  .  .  The  police  power  of  the  State  can 
only  be  permitted  to  limit  or  abridge  such  a  fundamental  right  as 
the  right  to  make  contracts,  when  the  exercise  of  such  power  is 
necessary  to  promote  the  health,  comfort,  welfare  or  safety  of 
society  or  the  public ;  and  it  is  questionable  whether  it  can  be 
exercised  to  prevent  injury  to  the  individual  engaged  in  a  par¬ 
ticular  calling.” 

It  would  seem  that  such  language  as  this  would  preclude  any 
legislation  limiting  the  hours  of  labor  for  women,  but  fourteen 
years  after  this  decision,  the  General  Assembly  enacted  a  law  pro¬ 
hibiting  the  employment  of  females  in  any  mechanical  establishment 
or  factory  or  laundry  for  more  than  ten  hours  in  any  one  day,  and 
this  statute  was  declared  valid  by  the  Supreme  Court. ^ 

Under  the  constitution,  the  cost  of  paving  streets  may  be  paid 
by  special  assessments,  but  not  the  cost  of  sprinkling  streets.^  Suppose 
the  General  Assembly  deems  it  advantageous  to  permit  the  oiling  of 
streets  by  special  assessment.  Only  a  judicial  decision  can  determine 
whether  such  a  measure  is  valid  or  not.  The  General  Assembly, 
recognizing  the  constitutional  c[uestion  involved,  may  properly  enact 

1  Ritchie  v.  People.  155  Ill.  98  (1895). 

2  Ritchie  &  Co.  v.  Wayman,  244  Ill.  509  (1910);  also  People  v.  Elerding,  254 
Ill.  579  (1912). 

3  City  of  Chicago  v.  Blair,  149  Ill.  310  (1894). 


9 


the  law  and  leave  to  the  court  the  final  determination  of  its  validity. 
On  the  other  hand,  the  legislature  is  clearly  under  a  duty  not  to  enact 
laws  plainly  violative  of  the  fundamental  law  and  throw  upon  the 
courts  and  litigants  the  burden  of  erasing  acts  from  the  statute  book. 

The  second  step  in  the  construction  of  a  bill  is  the  selection  of 
the  legislative  expedients  that  carry  into  efifect  the  legal  principle. 
The  creation  of  commissions  and  agencies  to  administer  the  law ;  the 
fixing  of  criminal  penalties  and  civil  liabilities ;  the  requirement  of 
oaths,  bonds,  etc.,  are  statutory  devices  adopted  to  accomplish  the 
desired  end.  For  example,  in  the  Workman’s  Compensation  Act  the 
legal  principle  is  a  system  of  compensation  for  all  injuries  incurred 
during  the  course  of  employment,  without  regard  to  proximate  cause. 
The  questions  of  employment,  extent  of  the  injury,  etc.,  might  have 
been  referred  to  the  courts,  but  since  it  was  thought  that  most  justi- 
'  ciable  questions  connected  with  such  claims  had  been  eliminated,  a 
board  was  created  with  examiners  to  determine  all  such  matters.^ 
The  Industrial  Commission  with  its  system  of  hearings  and  proced¬ 
ure  constitutes  the  statutory  expedients  of  this  act. 

Again  constitutional  limitations  on  the  power  of  the  legislature 
must  be  observed  in  connection  with  the  ways  and  means  of  making 
effective  the  legal  principle.  The  provision  that  “no  person  shall  be 
deprived  of  life,  liberty  or  property  without  due  process  of  law,”'^ 
is  a  procedural  requirement  as  well  as  a  test  of  the  substance  of  legis¬ 
lation.  Not  only  must  the  object  to  be  attained  by  a  statute  be  a 
proper  one  for  legislative  enactment,  but  the  methods  of  accomplish¬ 
ment  must  be  within  the  constitutional  limitations  which  safeguard  the 
rights  of  the  individual.  Thus,  some  method  may  be  desirable  to 
compel  witnesses  to  attend  and  give  evidence  before  a  notary  public. 
A  statute,  however,  that  attempts  to  authorize  a  court  to  punish  in  a 
summary  way  as  for  contempt  the  refusal  to  obey  a  notary’s  subpoena 
violates  the  right  to  trial  by  jury.^  But  the  statute  may  authorize 
the  officer  to  apply  for  an  order  from  the  court  directing  the  witness 
to  attend  and  testify,  and  failure  to  obey  the  court’s  order  may  be 
punished  as  contempt.”^ 

The  first  two  steps  in  constructing  a  bill — the  conception  of  the 
legal  principle  and  the  adoption  of  means  to  make  it  effective — re¬ 
late  to  the  substance  of  legislation.  The  third  step — the  reduction 
of  the  substance  to  appropriate  language  to  express  the  legislative 
will — is  concerned  with  matters  of  form.  Let  us  consider  the  work 
of  the  bill-drafter  in  connection  with  the  several  steps  in  making  a 
bill.  It  is  clear  that  the  actual  drafting  can  be  done  with  advantage 
for  the  legislator  by  persons  skilled  in  legislative  expression  and  forms 
best  adapted  to  accomplish  the  desired  ends.  The  aid  rendered  the 

^  The  submission  to  the  courts  of  controversial  matters  arising-  under  a  -work¬ 
men’s  Compensation  act  was  unsatisfactory  because  it  involved  a  great  deal  of 
administrative  detail. 

5  Constitution  of  1870,  Article  II  Section  2. 

“Puterbaugh  v.  Smith,  131  Ill.  199  (1890);  McIntyre  v.  People.  227  Ill.  26 
(1907). 

^People  V.  Rushworth.  294  Ill.  45f>  (1920). 

See  Chapter  on  Forms,  subhe.ading  Provisions  authorizing  hearings,  com¬ 
pelling  obedience  to  subpoenas  and  extending  immunity. 


10 


*  _ 

legislator  may,  however,  extend  farther  than  the  mere  drafting.  The 

selection  of  legislative  expedients  is  largely  a  matter  of  research,  the 
cohection  of  data,  reference  to  existing  legislation  in  this  and  other 
jurisdictions,  combined  with  a  resourcefulness  and  imagination  to 
project  a  theory  into  different  situations  and  contingencies  “and  to 
foresee  whether  and  how  a  ])a])er  scheme  will  work  out  in  practice.”® 
A  legal  training  and  an  acquaintance  with  the  history  of  legislation  are 
essential.  For  example,  in  1905  the  divorce  law  was  amended  to 
prohibit  the  remarriage  of  either  party  within  one  year.* *'^  The  ex¬ 
pedients  adopted  to  enforce  the  provision  are  two:  (1)  a  penalty 
provision  for  violation  of  the  prohibition;  and  (2)  marriage  within 
that  period  is  invalidated.  Ordinarily  to  attach  a  penalty  of  im¬ 
prisonment  and  to  render  ineffective  the  thing  attempted  to  be  done, 
would  be  sufficient  to  secure  compliance  with  the  provisions  and  en¬ 
force  the  prohibition. 

In  the  statute  in  cjuestion  there  is  no  express  provision  that  a 
marriage  by  a  divorced  person  within  one  year  performed  in  another 
state  is  invalid.  The  general  rule  is  that  marriages  valid  where  per¬ 
formed  are  valid  everywhere  unless  contrary  to  morality  and  the 
laws  of  nature.  Statutes  are  not  presumed  to  have  extra-territorial 
effect  unless  that  intent  ])lamly  appears.  Clearly  a  reasonable  con¬ 
struction  of  the  words  themselves  would  be  to  limit  their  application 
to  marriages  within  the  jurisdiction  of  the  state.  But  to  give  such  a 
construction  to  the  statute  in  question  renders  it  utterly  ineffective 
since  all  that  would  be  necessary  for  a  divorced  person  to  evade  the 
provisions  of  the  act  and  escape  the  penalty  would  be  to  marry  beyond 
the  limits  of  the  state.  The  Supreme  Court,  appreciating  this  fact, 
refused  to  recognize  marriages  in  another  state  of  divorced  residents 
of  this  state  who  left  this  state  merely  for  the  purpose  of  evading  the 
provisions  of  this  act.^”  “To  say  that  the  legislature  intended  such 
a  law  to  apply  onlv  while  the  parties  are  within  the  boundaries  of 
the  state,  and  that  it  contemplated  that  by  crossing  the  state  line  its 
citizens  could  successfully  nullify  its  terms,  is  to  make  the  act  es¬ 
sentially  useless  and  impotent  and  ascribe  practical  imbecility  to  the 
law-making  power.”  In  effect,  then,  the  court,  by  construction,  adds 
an  additional  expedient — invalidating  a  foreign  marriage — in  order 
to  make  effective  the  legislative  policy. 

What  is  the  practical  operation  of  the  statute  with  its  extended 
construction?  In  the  first  place,  one  unfortunate  result  is  that  two 
persons  may  be  legally  regarded  as  married  in  one  state  and  unmar¬ 
ried  in  another.  Certainlv,  from  the  standpoint  of  morality,  there 
should  be  no  such  lack  of  uniformity  in  various  jurisdictions  as  to 
the  marriage  status.  Then  it  offers  an  opportunity  for  fraud  and 
deception,  absolving  the  guilty  party  and  punishing  the  innocent  one. 
Let  us  go  one  ste]:)  further.  The  Supreme  Court  says  that  it  is  “in¬ 
tended  to  control  the  conduct  of  the  residents  of  the  State,  whether 

thev  be  within  or  outside  of  its  boundaries.”  Presumablv,  the  statute 

* 

*  Tlbert.  The  Mechanics  of  Law  Making,  p.  110. 

9  Hurd  1919  p.  1119. 

19  Wilson  V.  Cook,  256  Ill.  460  (1912). 


11 


would  not  be  construed  to  invalidate  the  remarriage  within  one  year 
in  another  state  of  a  resident  of  Illinois  who  leaves  this  state  and 
in  good  faith  takes  up  a  residence  in  the  other  state.  In  other  words, 
whether  that  marriage  is  valid  in  Illinois  depends  not  on  facts  and 
the  acts  of  the  parties  thereto,  but  rather  on  their  intent.  The  evil 
of  this  result  is  obvious. 

Let  us  see  what  other  method  might  have  been  adopted  to  ac¬ 
complish  the  desired  object  without  the  disadvantage  of  the  present 
statute.  The  leading  principle  is  the  prohibition  of  the  marriage  of 
divorced  persons  within  one  year.  Provision  might  easily  be  made 
for  an  interlocutory  decree  which  would  become  hnal  at  the  end  of 
one  year.  Remarriage  in  that  case  is  made  impossible  not  only  in 
Illinois,  but  in  every  state  and  the  legal  status  of  two  persons  who 
have  had  a  ceremony  of  marriage  performed  is  uniform  wherever 
they  may  be.  In  every  state,  too,  the  performance  of  a  marriage 
ceremony  within  the  limit  of  one  year  would  be  punishable  as  bigamy 
by  the  law  of  the  particular  state. 

It  might  be  difficult  in  the  case  of  the  provision  concerning 
re-marriage  of  divorced  persons  to  gauge  beforehand  the  practic¬ 
ability  of  the  method  adopted  and  to  foresee  all  the  consecpiences 
and  opportunities  for  evasion.  But  the  difficulty  here  involved  and 
all  similar  statutory  problems  evidence  the  advantage  of  expert 
aid  in  selecting  methods  to  carry  out  the  legislative  policy^  Even 
if  it  is  not  possible  to  foresee  the  practical  operation  of  a  legis¬ 
lative  experiment  it  is  at  least  possible  when  that  experiment  has 
been  tried  in  one  state,  to  collect  information  and  observations 
as  to  its  desirability  and  to  give  the  legislator  the  benefit  of  such 
information. 

Let  us  return  briefly  to  the  first  step  in  constructing  a  bill — 
the  conception  of  the  leading  principle.  If  legislation  consists  in 
amending  or  changing  the  legal  situation  in  some  respect,  the  con¬ 
ception  of  the  leading  principle  of  a  bill  must  be  based  on  an  ade¬ 
quate  knowledge  of  the  present  status  of  the  law.  The  legislator 
cannot,  of  course,  have  a  legal  knowledge  which  embraces  the  com¬ 
plete  body  of  law  and  legal  assistance  at  this  point  can  be  rendered 
to  advantage.  Information  collected  and  prepared  by  investigating 
commissions,  departments  of  government  and  other  b'odies  who 
have  conducted  inquiries  in  s])ecialized  fields  may  also  be  fur¬ 
nished  the  legislator. 

Mention  has  been  made  of  constitutional  limitations  afifecting 
both  the  main  purpose  of  a  measure  and  the  methods  by  which  it 
is  to  be  accomplished.  The  importance  from  a  legislative  stand¬ 
point  of  knowing  the  constitutional  situation  as  it  afiPects  a  measure 
has  already  been  stated.  Members  of  the  General  Assembly  come 
from  all  walks  of  life.  Many  are  lawyers,  but  the  practice  of  the 
average  lawyer  does  not  lie  within  the  field  of  constitutional  law. 
The  Governor  in  his  capacity  as  a  part  of  the  law-making  power, 
customarily  has  the  advice  of  the  Attorney  General  as  to  the  con¬ 
stitutionality  of  measures  ])assed  by  the  General  Assembly.  It 
would  seem  that  legal  advice  on  these  constitutional  matters  should 


12 


be  at  the  disposal  of  members  of  the  legislature.  Some  legislative 
reference  bureaus,  notably  the  one  in  \\  isconsin,  make  no  attempt 
to  advise  as  to  constitutional  questions.  In  the  legislative  refer¬ 
ence  bureau  in  Illinois,  however,  it  has  been  considered  a  part  of 
the  duty  of  the  bill-drafter  to  consider  constitutional  questions  in 
connection  with  a  proposed  measure  and  to  acquaint  the  legislator 
with  possible  objections.  That  having  been  done,  the  bill,  if  de¬ 
sired,  is  drafted  regardless  of  possible  invalidity. 

It  is  apparent  that,  aside  from  the  actual  drafting  of  bills,  the 
aid  furnished  legislators  by  persons  with  special  training  and  ex¬ 
perience  in  legislative  methods  may  extend  into  every  step  in  the 
construction  of  a  bill.  The  notes  and  suggestions  here  collected 
are  limited,  however,  to  the  discussion  of  statutory  form.  That 
this  is  no  unimportant  part  of  legislation  is  evidenced  by  the  state¬ 
ments  of  many  jurists  and  students  of  the  science  of  legislation. 
In  an  address  before  the  American  Bar  Association,  Judge  William 
Schofield  said:  “To  draw  a  statute  modifying  the  common  law  in 
such  language  as  to  effect  exactly  the  result  intended  is  one  of  the 
most  difficult  achievements  of  legal  skill.”  And  John  Austin,  the 
well-known  writer  on  Jurisprudence,  and  the  man  largely  respon¬ 
sible  for  the  form  of  modern  English  Statutes,  said :  “I  will  ven¬ 
ture  to  affirm  that  what  is  commonly  called  the  technical  part  of  legis¬ 
lation  is  infinitely  more  difficult  than  what  may  be  called  the  ethical. 
In  other  words,  it  is  far  easier  to  conceive  justly  what  would  be 
useful  law,  than  so  to  construct  that  same  law  that  it  may  accom¬ 
plish  the  design  of  the  law-giver.” 

It  is  to  this  limited  but  important  part  of  the  bill-drafter’s  work 
that  this  discussion  is  directed.  Constitutional  questions  have  been 
mentioned  only  as  they  relate  to  the  form  of  statutes.  Even  in 
this  field  it  is  not  hoped  to  make  a  complete  treatment  of  the 
subject  but  only  to  call  attention  to  the  most  glaring  faults  in 
Illinois  statutes.  Frequent  reference  by  way  of  illustration  has 
been  made  to  the  laws  of  this  state  but  it  must  not  be  concluded 
that  they  are  uniformly  poor  in  the  matter  of  form.  There  is 
much  that  is  excellent  in  the  work  of  Illinois  legislators  as  is 
instanced  by  this  commendation  of  one  act  by  the  Supreme  Court. 

“The  elements  which  go  to  make  up  the  offense  created  by  this 
section  of  the  statute  are  so  plainly  and  concisely  expressed,  that 
it  would  be  useless  to  attempt  to  make  any  change  in  the  language 
used,  with  the  hope  of  presenting  them  in  a  more  concise  or  per¬ 
spicuous  form.  Indeed,  the  section,  in  both  respects,  may  be  re¬ 
garded  as  a  specimen  of  model  legislation.”^^ 


“Henderson  v.  People,  124  Ill.  607  at  612  (1888). 


13 


TITLE  AND  SINGLENESS  OF  SUBJECT. 


Subject:  Section  13  of  Article  IV  of  the  constitution  pro¬ 
vides  that  “No  act  hereafter  passed  shall  embrace  more  than  one 
subject,  and  that  shall  be  expressed  in  the  title.  But  if  any  sub¬ 
ject  shall  be  embraced  in  an  act  which  shall  not  be  expressed  in  the 
title,  such  act  shall  be  void  only  as  to  so  much  thereof  as  shall  not 
be  so  expressed.”  This  requirement  which  is  one  of  the  most  im¬ 
portant  of  those  relating-  to  the  form  of  legislation,  occurs  in  sub¬ 
stance  in  many  of  the  state  constitutions.  Any  discussion  of  the 
titles  to  statutes  and  unity  of  subject  is  necessarily  largely  devoted 
to  the  question  of  conformity  to  this  provision.  There  are  three 
separate  instructions ;  the  first  two  are  in  the  nature  of  charges 
to  the  General  Assembly  (1)  that  each  act  shall  be  limited  to  a 
single  subject  and  (2)  that  the  title  shall  express  the  subject.  The 
third  instruction  is  a  rule  of  construction  for  the  court  if  the  sec¬ 
ond  charge  is  disregarded  and  the  title  fails  to  express  all  that  the 
act  embraces.  The  first  two  instructions  are  rules  for  bill  drafting 
but  the  third  is  not. 

Although  the  first  two  parts  of  the  constitutional  provision  are 
distinct,  a  provision  in  a  statute  may  be  objectionable  to  both.  For 
example,  if  a  general  title  expresses  the  subject  of  an  act,  but  it  is 
claimed  that  some  provision  in  the  act  is  so  disconnected  from 
the  subject  that  it  should  not  have  been  included  in  the  act,  it  natur¬ 
ally  would  follow  that  the  title  would  not  express  the  matter  per¬ 
taining  to  another  subject.  As  a  matter  of  fact  there  are  but  few 
cases .  in  which  the  court  has  considered  the  limitation  relating 
to  subject  apart  from  the  provision  as  to  title. 

“Subject”  as  used  in  the  prohibition  against  more  than  one 
subject  in  a  statute,  has  no  mathematically  precise  meaning  nor  can  it 
be  defined  exactly.  The  provision  was  designed  to  prevent  “log-roll¬ 
ing”  legislation  and  the  court  mindful  of  the  evil  aimed  at,  has  held 
that  it  should  not  be  construed  to  restrict  the  scope  of  an  act  pro¬ 
vided  the  act  deals  with  one  general  subject. That  is  to  say,  an 
act  may  be  comprehensive,  covering  a  very  general  subject  and 
that  generality  will  not  render  it  objectionable.  “The  General  As¬ 
sembly  must  determine  for  itself  how  broad  and  comprehensive 
shall  be  the  object  of  the  statute.  .  .  Indeed,  the  court  has 

commended  the  legislative  policy  of  incorporating  in  a  single  act 
the  entire  body  of  statutory  law  upon  a  general  subject  rather  than 
to  divide  it  into  a  number  of  separate  acts.  Such  broad,  compre- 

Rouse  vs.  Thompson,  228  Ill.  522  (1907). 

Sutter  V.  People’s  Gas  Light  Co.,  284  Ill.  634  (1918). 


14 


hensive  acts  as  Township  Organization,  Incorporation  of  Cities,  Vil¬ 
lages  and  Towns,  the  Criminal  Code,  the  Revenue  Law  and  the  Prac¬ 
tice  Act  have  been  mentioned  favorably  by  the  court  as  illustra¬ 
tions  of  this  policy/^ 

The  prohibition  against  duplicit}^  of  subjects  is  directed,  rather, 
against  the  joining  into  one  measure  of  incongruous  and  unrelated 
matters.  \\  hether  there  is  a  logical  connection  and  relation  be¬ 
tween  the  matters  treated  is  the  test  as  to  unity  of  subject  rather 
than  the  extent  and  scope  of  the  act.  “The  word  ‘subject’  as 
used  in  the  constitution  signifies  the  matter  or  thing  forming  the 
groundwork.  It  may  contain  many  parts  which  grow  out  of  it 
and  are  germane  to  it,  and  which,  if  traced  back,  will  lead  the 
mind  to  it  as  the  generic  head.  Any  matter  or  thing  which  may 
reasonably  be  said  to  be  subservient  to  the  general  subject  or  pur¬ 
pose  will  be  germane  and  may  be  properly  included  in  the  law.”^" 

The  word  “germane”  has  been  freciuently  employed  by  the 
court  in  discussing  the  connection  or  relationship  of  provisions 
to  a  subject.  This  term  is  considered  at  some  length  by  the  court 
in  condemning  an  act  which  authorized  the  city  of  Chicago  to  sell 
surplus  electricity  and  to  fix  the  rates  for  the  sale  in  Chicago  of 
gas  and  electricity  by  individuals  and  companies.^® 

“In  considering  whether  all  the  particular  provisions  of  an 
act  are  embraced  iii  a  single  subject  the  word  ‘germane’  has  been 
a  favorite  one  with  the  courts,  .  .  .  Literally,  ‘germane’  means 
‘akin’,  ‘closely  allied.’  It  is  only  applicable  to  persons  who  are 
united  to  each  other  by  the  common  tie  of  blood  or  marriage. 
W  hen  applied  to  inanimate  things,  it  is,  of  course,  used  in  a 
metaphorical  sense,  but  still  the  idea  of  a  common  tie  is  always 
present.  Thus,  when  properly  applied  to  a  legislative  provision, 
the  common  tie  is  found  in  the  tendeijcy  of  the  provision  to  pro^ 
mote  the  object  and  purpose  of  the  act  to  which  it  belongs.  Any 
]3rovision  not  having  this  tendency  which  introduces  new  subject 
matter  into  the  act  is  clearly  obnoxious  to  the  constitutional  pro¬ 
vision  in  question.  It  is  an  error  to  suppose  that  two  things  are, 
in  a  legal  sense,  germane  to  each  other  merely  because  there  is 
a  resemblance  between  them  or  because  they  have  some  character¬ 
istics  common  to  them  both.” 

A  statute  combining  all  the  law  concerning  a  broad,  general 
subject  will  embrace  matters  which  considered  individually  are  un¬ 
related  to  each  other  but  all  of  which  are  germane  to  the  general 
subject.  If,  for  instance,  two  diverse  matters  from  the  criminal 
code  were  placed  in  an  act  which  covered  nothing  else  there  would 
be  an  improper  combination  of  two  minor,  specific  subjects.  But 
the  Criminal  Code  may  collect  those  two  and  many  others  and  unity 
follows  from  their  relationship  to  the  one  general  subject,  crim¬ 
inal  jurisprudence. 

To  the  general  rule  that  any  matter  or  thing  may  be  properly 
included  in  an  act  if  it  is  germane  to  the  subject,  one  exception 

Sutter  Y.  Peoples  Gas  Light  Co..  284  III.  634  (1918). 

People  V.  Sargent,  ■  2.64  Ill.  .514  (1912). 

Sutter  V.  People’s  Gas  Light  Co..  284  Ill.  634  (1918). 


must  be  noted.  This  exception  is  created  by  Section  H)  (3f  Article 
lY  of  the  constitution  which  says:  “Hills  makini>'  ap])ropriations 
for  the  pay  of  members  and  officers  of  the  (jcneral  Assend)ly,  and 
for  the  salaries  of  the  officers  of  the  government  shall  contain 
no  provision  on  any  other  subject,”  By  express  terms  these  ap¬ 
propriations  are  made  an  independent  subject  of  le,2:islation.  An 
act  creating  free  employment  agencies  cannot  contain  an  ap])ropria- 
tion  for  the  salaries  of  the  superintendents  of  these  agencies.^"  An 
appropriation  act  cannot  make  appropriations  for  both  the  ordinary 
and  contingent  expenses  of  the  goverment  and  the  salaries  of  state 
officers^® 


The  rule  laid  down  by  this  section  of  the  constitution  is  cpiite 
clear;  its  application,  however,  is  not  always  easy  because  of  the 
difficulty  of  drawing  a  line  between  officers  and  emi)loyes.  “Office’"^ 
is  defined  in  Article  V,  section  24  of  the  constitution  as  “a  i)ublic 
position,  created  by  the  constitutiou  or  law,  continuing  during  the 
pleasure  of  the  appointing  power,  or  for  a  fixed  time,  with  a  succes¬ 
sor  elected  or  appointed,”  and  “employment”  is  defined  as  “an 
agency  for  a  temporary  purpose,  which  ceases  when  that  puri)Ose 
is  accomplished.”  To  this  definition  the  court  has  added  little.  In 
the  case  of  Fergus  v.  Russel, the  court  discusses  what  consti¬ 
tutes  creation  of  an  office  by  law.  “An  office  is  created  by  law  only  as  a 
result  of  an  act  passed  for  that  purpose.  The  mere  appropriation 
by  the  General  Assembly  of  money  for  the  payment  of  compensa¬ 
tion  to  the  incumbent  of  a  specified  position  does  not  have  the 
efifect  of  creating  an  office  or  of  giving  such  incumbent  the  charac¬ 
ter  of  an  officer  .  . 


Title:  Of  the  two  provisions,  one  relating  to  the  subject  and 
the  other  to  the  title  of  statutes,  the  second  has  caused  the  greater 
difficulty.  Like  the  subject  restriction,  this  ]movision  is  not  pre¬ 
cise  and  definite.  There  is  no  sharp  line  dividing  titles  which  ex¬ 
press  the  subject  and  those  which  do  not  and  since  a  title  can  not 
inventory  all  the  provisions  of  an  act,  the  titles  to  many  acts  have 
been  attacked  since  this  provision  was  incorporated  in  the  consti¬ 
tution  of  1870.  As  Justice  Craig  expresses  it;  “The  objection  that 
a  statute  includes  matters  which  are  not  expressed  in  the  title  of 
the  act  is  one  which  is  frequently  urged  and  seldom  sustained. 
The  reason  for  this  is  that  they  arc  usually  frivolous  and  without 
merit. In  spite  of  the  fact  that  this  provision  has  been  consid¬ 
ered  in  numerous  decisions  by  the  Supreme  Court,  it  is  not  possible 
to  lay  down  absolute  rules  by  which  it  mav  be  determined  whether 
or  not  a  title  sufficiently  expresses  the  subject  of  an  act.  The 

Mathews  v.  People,  202  Til.  389  (1903). 

18  persus  V.  Russel.  270  Ill.  304  (lOl.'i). 

270  Ill.  304  (1915). 

For  a  discussion  of  the  cases,  sec  Constitution  of  the  State  of  Illinois, 
\nnotated.  nn.  99.  147. 

21  People  V.  Stokes,  281  Ill.  159  (1917). 


16 


cases  will  serve  to  show  the  purpose  of  this  provision  and,  in  a 
general  way,  the  construction  placed  upon  it. 

“The  object  of  the  constitutional  provision,”  the  court  says, 
“was  not  to  hinder  legislation  or  require  that  the  title  of  an  act 
should  be  an  index  to  the  subject  matter  which  followed  and  min¬ 
utely  and  exactly  express  ever3^  related  matter  which  was  included 
in  the  act,  but,  on  the  contrary,  was  intended  to  require  the 
title  of  the  act  to  express  in  general  terms  the  objects  and  pur¬ 
poses  of  the  act,  so  as  to  prevent  surprise  or  fraud  by  the  inser¬ 
tion  of  provisions  into  the  act  of  which  the  title  gave  no  intima¬ 
tion,  and  to  apprise  the  people,  through  the  usual  course  of  publi¬ 
cation  of  legislative  proceedings,  of  the  subject  matters  of  legis¬ 
lation  being  considered.” 

The  court,  continuing,  states  the  two  methods  by  which  a 
title  ma}^  express  the  subject:  “This  may  be  done  either  by  ex¬ 
pressing  in  the  title  in  a  brief,  general  statement  the  objects  and 
purposes  of  the  act,  or  by  so  framing  the  title  as  to  express  the 
principal  features  of  the  act  more  in  detail.  Either  method  adopted 
will  answer  the  requirements  of  the  constitution  so  long  as  the 
general  subject  matter  of  the  legislation  is  fairly  indicated.” 

Of  the  two  kinds  of  titles,  one  merely  indicating  in  general 
terms  the  subject  of  the  act  and  the  other  in  the  nature  of  a 
table  of  contents  of  the  principal  features,  the  first  is  to  be  pre¬ 
ferred.”^  The  court  has  said  that  either  form  is  a  compliance  with 
the  constitutional  provision  and  that  it  is  for  the  General  Assembly 
to  determine  with  what  particularity  the  title  shall  express  the  sub¬ 
ject. At  the  same  time,  the  court  has  indicated  that  it  favors 
simple,  general  titles  rather  than  complex  and  restrictive  ones. 
The  Motor  Vehicle  Act  of  1911  was  entitled,  “An  Act  defining  motor 
vehicles  and  providing  for  the  registration  of  the  same  and  of  mo¬ 
tor  bic3"cles,  and  uniform  rules  regulating  the  use  and  speed 
thereof;  prohibiting  the  use  of  motor  vehicles  without  the  con¬ 
sent  of  the  owner  and  the  offer  or  acceptance  of  any  bonus  or 
discount  or  other  consideration  for  the  purchase  of  supplies  or 
parts  for  any  such  motor  vehicle  or  for  work  or  repairs  done  thereon 
bv  others,  and  defining  chauffeurs  and  providing  for  the  examina¬ 
tion  and  licensing  thereof,  and  to  repeal  certain  acts  therein 
named. The  court  held  as  to  this  title  that  the  “mere  mention¬ 
ing  in  the  title  of  related  particulars  is  not  stating  a  pluralitv  of 
subjects,”  but  it  remarks  that  “the  subject  is  expressed,  perhaps, 
with  unnecessary  particularity^  in  the  title.”  For  a  general  title, 
the  court  suggests,  “An  Act  in  relation  to  motor  vehicles  and  to 
repeal  certain  acts  therein  named. A  revision  of  the  motor  vehi¬ 
cle  law  was  enacted  in  1919,  which  follows  the  court’s  suggestion  by 
adopting  substantially  the  brief  general  title. 


22  People  V.  Stokes.  281  Ill.  159  (1917). 

22  See  Chapter  on  Forms,  subheading:.  Titles  to  independent  bills. 
2-*  People  V.  XeLson.  133  Til.  565  (1890). 

23  Laws,  1911.  p.  487. 

2®  People  V.  Sargent.  254  Ill.  514  (1912). 

27  Hurd,  1919,  p.  2620. 


17 


There  are  several  objections  to  the  table-of-contents  title  which 
it  may  be  worth  while  to  mention.  In  the  first  place,  the  expres- 
•  sion  of  details  in  the  title  of  an  act  limits  the  subject,  for  when 
the  title  is  limited  to  one  particular  only  of  some  general  subject, 
the  body  of  the  act  must  be  limited  to  the  particular  or  special 
subject  in  the  title  and  to  matters  properly  connected  therewith 
and  the  act  cannot  deal  with  other  particulars  of  the  general 
subject.  A  recent  decision  of  the  Supreme  Court  will  illustrate 
this  rule.  The  Deadly  Weapon  Act  of  1881^®  was  entitled  “An  Act 
to  regulate  the  traffic  in  deadly  weapons  and  to  prevent  the  sale 
of  them  to  minors.”  This  title  lists  two  principal  provisions  of  the 
act  but  it  does  not  mention  any  regulation  or  restriction  as  to 
carrying  concealed  weapons.  Nor  is  this  third  provision  suggested 
by  the  two  which  do  appear  in  the  title.  “All  human  activities, 
however  diverse  or  concerning  different  subjects,  are  in  some  re- 
,  mote  sense  related  to  each  other,  but  the  constitutional  provision 
requires  that  there  must  be  some  reasonable  relation  between  a  pro¬ 
vision  and  the  subject  expressed  in  the  title  ...”  The  provision  re¬ 
lating  to  carrying  concealed  weapons  was  held  void  when  it  might 
well  have  been  included  in  the  act  under  a  general  title  which 
merely  directed  attention  to  the  subject  of  deadly  weapons.^® 

Another  objection  to  the  detailed  title  is,  that  while  it  may 
successfully  list  all  the  features  of  the  act  as  originally  passed,  if 
it  is  desired  to  add  other  provisions  later,  it  is  necessary  to  amend 
the  title  also  to  include  mention  of  the  additional  matter.  The 
inconvenience  of  long,  unwieldy  titles  is  a  still  further  objection. 
With  a  simple  concise  title,  also,  the  purpose  of  the  act  stands  out 
more  clearly. 

When  the  purpose  of  a  statute  and  the  general  subject  are  dis¬ 
closed  by  the  title,  the  courts  uniformly  hold  that  such  a  title  covers 
all  matters  having  any  reasonable  connection  with  that  general  sub¬ 
ject.  “When  a  general  purpose  is  declared,  the  means  by  which  to 
accomplish  that  purpose  are  presumed  to  be  intended  as  necessary  in¬ 
cidents.  Any  means  which  are  reasonably  adapted  to  secure  the  ob¬ 
ject  indicated  in  the  title  may  be  included  in  the  act.  If  by  any  fair 
intendment  the  provisions  in  the  body  of  the  act  have  a  necessary 
or  proper  connection  with  the  title  it  is  not  objectionable.  T.o  render 
a  provision  in  the  body  of  an  act  void,  as  not  embraced  in  the  title, 
such  provision  must  be  incongruous  with  the  title  or  must  have  no 
proper  connection  with  or  relation  to  the  title.  If  all  the  provisions 
of  an  act  relate  to  one  subject  indicated  in  the  title,  and  are  parts  of  it 
or  incident  to  it  or  reasonably  connected  with  it  or  in  some  reasonable 
sense  auxiliary  to  the  object  in  view,  then  the  provision  of  the  con¬ 
stitution  is  obeyed.  An  act  may  contain  many  provisions  and  de¬ 
tails  for  the  accomplishment  of  a  legislative  purpose,  and  if  they 
legitimately  tend  to  effectuate  that  object  the  act  is  not  contrary  tc 
the  constitutional  provision. 

28  Laws,  1881,  p.  73. 

20  People  V.  Horan,  293  Ill.  314  (1920). 

2*  People  V.  Huff,  249  Ill.  164  (1911),  and  cases  there  cited. 


18 


In  nearly  every  instance  where  a  title  has  been  held  not  to  express 
the  subject  of  an  act,  the  objection  has  been  that  it  was  too  restricted. 
Instead  of  expressing  the  general  subject,  it  ^^ointed  out  only  a  portion, 
of  it.  Of  course,  a  title  can  be  made  so  general  as  to  be  meaningless. 
Though  a  title  need  only  express  the  general  subject,  it  should  indi¬ 
cate  fairly  that  subject  and  afford  an  intimation  of  the  true  nature  of 
the  measure.  “While  it  may  be  a  general  expression  of  the  subject,  it 
must  be  specific  enough  to  accomplish  the  purpose  for  which  the 
subject  is  required  to  be  expressed  in  the  title  ....  The  title  will 
sufiiciently  conform  to  the  command  of  the  constitution  if  it  be  so 
framed  and  worded,  as  fairly  to  apprise  the  legislators,  and  the 
public  in  general,  of  the  subject  matter  of  the  legislation,  so  as  to 
reasonably  lead  to  an  inquiry  into  the  body  of  the  bill.  The  constitu¬ 
tional  requirement  may  be  interpreted  to  mean  that  the  act  and  its 
title  must  correspond, — not  literally,  but  substantially;  and  such  cor¬ 
respondence  is  to  be  determined  in  view  of  the  subject  matter  to 
which  the  legislation  relates. That  is  to  say,  a  title  may  be  broader 
than  the  act  in  the  sense  that  the  body  of  the  act  need  not  legislate 
respecting  all  the  matters  which  might  be  included  under  the  title,  but 
the  title  must  not  be  so  general  as  to  be  misleading  and,  in  effect, 
conceal  the  subject  of  the  statute  rather  than  express  it. 

Since  an  expression  in  the  title  of  the  general  subject  and  purpose 
is  sufficient  without  reciting  the  means  by  which  it  is  to  be  accom¬ 
plished,  it  is  unnecessary  to  include  such  phrases  as  “providing  for 
its  enforcement”,  and  “providing  penalties  for  violation. Nor  is 
it  necessary  to  recite  in  the  title  “and  to  repeal  a  certain  act  therein 
named”  when  the  repeal  of  the  act  is  germane  to  the  subject  of  the 
second  act  and  auxiliary  to  the  general  purpose  expressed. Men¬ 
tion  of  a  referendum  provision  need  not  be  made  in  the  title  since 
this  is  a  means  connected  with  its  execution  f  nor  is  it  necessary 
to  refer  to  an  emergency  provision.  Expressions  such  as  “et  cetera,” 
“and  so  forth”  and  “for  other  purposes”  have  been  held  in  nearly 
all  states  not  to  add  to  the  title  of  an  act  or  to  extend  its  meaning 
and  the  use  of  such  phrases  should  be  condemned. 

A  provision  appropriating  money  in  an  act  as  a  means  of  ac¬ 
complishing  the  object  of  the  measure  is  so  clearly  germane  to  the 
general  purpose  that,  from  a  constitutional  standpoint,  the  appropria¬ 
tion  need  not  be  expressly  mentioned  in  the  title.  However,  this  much 
may  be  said  for  its  inclusion  in  the  title, — the  expenditure  of 

Milne  v.  People,  224  Ill.  125  (1906).  In  this  case,  the  court  held  uncon¬ 
stitutional  an  act  of  1905,  entitled  “An  act  for  the  punishment  of  crimes  against 
children.”  The  act  made  it  a  felony  to  take  indecent  liberties  with  a  child. 
In  the  view  of  the  court  the  title  does  not  express  the  fact  that  the  act  creates 
a  new  crime  of  a  particular  nature.  “One  reading  this  title  would  have  no  con¬ 
ception  of  what  might  be  expected  in  the  body  of  the  act.”  It  is  well  to  note 
in  connection  with  the  holding  in  this  case  that  the  usual  method  of  drafting 
an  act  of  this  nature  is  in  the  form  of  an  amendment  to  the  criminal  code. 

If  that  had  been  done,  the  title  would  have  been  “An  act  to  amend  ‘An  act  to 
revise  the  law  in  lelation  to  criminal  jurisprudence.’  ”  This  title  would 
necessarily  be  held  valid  and  yet  it  affords  far  less  indication  of  the  nature 
of  the  act  than  the  title  held  bad. 

People  V.  Blue  Mountain  Joe,  129  Ill.  370  (1889);  Cohn  v.  People,  149  Ill. 
486  (1894). 

33  Timm  v.  Harrison,  109  Ill.  593  (1884). 

3^  City  of  Virden  v.  Allan.  107  111.  505  (1883). 


19 


the  public  money  is  regarded  as  a  matter  of  considerable  import¬ 
ance  and  it  may  be  desirable  to  have  the  title  call  attention  to  this 
feature.  The  act  assembling  the  constitutional  convention'^'’'  is  one 
of  the  few  laws  carrying  appropriations  which  do  not  make  mention 
of  that  provision  in  the  title. 

The  preceding  discussion  of  titles  refers  more  particularly  to 
independent  legislation.  The  constitutional  ])rovision  as  to  expressing 
the  subject  in  the  title  applies  also  to  amendatory  acts.^^'  It  has  been 
held  that  if  the  provisions  of  the  amending  statute  are  germane  to 
the  subject  expressed  in  the  title  of  the  act  amended,  the  title  of  the 
amending  act  sufficiently  expresses  its  subject  by  referring  to  the  act 
amended  and  declaring  the  purpose  to  amend  or  supplement  it.''^'  The 
title  of  an  amendatory  act  is  not  expressive  of  the  subject  if  the  act 
contains  provisions  which  could  hot  properly  have  been  inserted  in 
the  original  act  under  its  title. 

If,  however,  the  title  of  the  amendatory  act  declares  a  ]nirpose 
to  amend  certain  sections  of  an  earlier  act,  the  body  of  the  amending 
act  must  be  limited  to  the  subject  of  the  sections  named. This  rule 
is  important  for  two  reasons:  First,  the  titles  of  a  majority  of 
amendatory  acts  refer  to  the  sections  amended ;  and  second,  it  is  often 
difficult  to  determine  whether  the  section  as  amended  is  germane  to 
the  subject  of  the  original  sections.  In  case  of  doubt,  the  title  of  the 
amending  act  should  be  made  to  refer  generally  to  the  original  act 
rather  than  to  particular  sections. 

When  it  is  desired  to  amend  an  act  by  provisions  which  are  not 
within  the  title  but  which  might  properly  have  been  included  in  the 
original  act  under  a  more  general  title,  the  amendatory  act  must  con¬ 
tain  a  provision  amending  the  original  title. The  purpose  of  an 
amendatory  statute  is  to  deal  with  the  subject  expressed  in  the  title 
of  the  act  amended.  If,  therefore,  that  subject  is  expanded  by 
amending  the  title  of  the  original  act,  then  the  title  of  the  subse¬ 
quent  act  should  afford  some  indication  of  the  expanded  subject. 
This  can  be  expressed  by  noting  in  the  title  of  the  second  act  the 
fact  that  the  original  title  is  amended. 

The  court  when  it  has  been  able  to  ascertain  the  legislative  in¬ 
tent  has  given  effect  to  several  amendatory  acts  which  did  not  cor¬ 
rectly  name  the  act  to  be  amended.  Thus,  an  act  purporting  to 
amend  “the  Criminal  Code”  was  held  to  refer  to  “An  Act  to  revise 
the  law  in  relation  to  criminal  jurisprudence.”^^  Another  statute 
which  was  sustained  named  the  prior  act  correctly  but  gave  to  the 
particular  sections  amended  the  numbering  as  it  appeared  in  Hurd’s 
Revised  Statutes.^^  As  these  cases  indicate,  the  court  will  endeavor 
to  effect  the  legislative  intent  but  such  errors  should  not  be  permitted 
to  jeopardize  the  validity  of  meritorious  legislation.  The  titles  of  acts 

Laws  1919,  p.  60. 

See  Chapter  on  Forms,  subheadingr.  amendatory  bills. 

3"  Gag-e  V.  City  of  Chicago,  203  Ill.  26  (1903). 

2*  Kennedy  v.  Le  Moyne,  188  Ill.  255  (1900). 

Dolese  v.  Pierce,  124  Ill.  140  (1888). 

^'’People  V.  City  of  Chicago,  256  Ill.  558  (1912). 

People  V.  Van  Bever.  248  Ill.  136  (1911). 

«  Patton  V.  People,  229  Ill,  512  (1907), 


20 


referred  to  should  be  correctly  stated,  together  with  the  dates  of 
approval  (or  of  filing,  if  the  act  was  not  approved)  and  going  into 
effect. If  there  have,  been  prior  amendments,  this  fact  should  be 
indicated  by  adding  the  words,  “as  amended,”  after  the  dates. In 
the  case  of  an  act,  the  title  of  which  has  previously  been  amended, 
the  reference  should  be  to  the  act  by  its  amended  title  but  with  the 
dates  of  approval  and  in  effect,  of  the  original  act.  The  act  is  the 
same  act  and  the  two  dates  remain  the  same  even  if  the  law,  at  some 
subsequent  time,  is  given  a  different  title.  Of  course,  the  fact  that 
the  act  has  been  amended  should  be  disclosed  by  the  words,  “as 
amended.” 

Frequently  after  the  first  draft  has  been  made  of  a  bill,  changes 
will  be  made,  sometimes  at  the  suggestion  of  the  legislator  for  whom 
it  has  been  prepared.  In  every  instance  the  title  of  the  bill  should 
be  checked  to  see  whether  it  is  broad  enough  to  cover  the  changes 
made.  This  observation  applies  equally  to  amendments  to  bills  after 
they  have  been  introduced  in  the  General  Assembly.^”  The  necessity 
of  care  in  this  regard  cannot  be  emphasized  too  strongly  because  a 
serious  defect  in  the  title  may  easily  creep  in  and  be  overlooked. 


In  most  cases,  the  date  of  approval  would  be  suflicient  to  identify  the 
act,  but  the  use  of  both  dates  has  been  customary. 

**  From  a  constitutional  standpoint,  the  reference  to  an  act  to  be  amended 
is  sufficient  without  the  words  “as  amended”  to  call  attention  to  prior  amend¬ 
ments.  But  this  phrase  should  not,  for  that  reason,  be  omitted.  It  serves  the 
useful  purpose  of  informing  the  reader  tha.t  the  reference  is  not  to  the  original 
act  but  to  the  act  in  its  present  form. 

^  See  Chapter  on  Forms,  subheading.  Amendments  to  bills. 


21 


WHEN  LAWS  TAKE  EFFECT. 


The  constitution  of  Illinois  fixes  the  time  when  acts  of  the 
General  Assembly  shall  become  effective.  Section  13  of  Article 
IV  reads  in  part  as  follows :  “And  no  act  of  the  General  Assembly 
shall  take  effect  until  the  first  day  of  July  next  after  its  passa.s^e, 
unless,  in  case  of  emergency  (which  emergency  shall  be  expressed 
in  the  preamble  or  body  of  the  act),  the  General  Assembly  shall, 
by  a  vote  of  two-thirds  of  all  the  members  elected  to  each  house, 
otherwise  direct.”  This  language  presents  some  difficulties  in  the 
case  of  legislation  passed  by  the  General  Assemblv  less  than  ten 
days  before  July  1,  so  that  the  period  of  time  allowed  for  con¬ 
sideration  of  measures  by  the  Governor,  extends  past  July  1.^®  But 
this  is  a  matter  of  construction  which  does  not  affect  the  drafting  of 
measures. 

In  the  case  of  some  measures,  it  is  desirable  to  delay  the 
time  of  becoming  operative  until  a  date  later  than  July  1.  Thus,  the 
Public  Utilities  Act  of  1913  and  the  Motor  Whicle  Law  of  1919,  by 
provisions  to  that  effect,  were  not  in  force  until  January  1  fol¬ 
lowing  their  passage.  Many  of  the  licensing  acts  read,  “After 
October  1,  1919,  it  shall  be  unlawful  etc.”  Technicalhy  a  measure 
with  a  provision  of  this  character  becomes  a  law  July  1  even  though 
its  provisions  i^ot  become  operative  at  this  date.  There  would 
seem  to  be  no  constitutional  objection  to  suspendng  the  operation 
of  a  law  for  a  period  after  July  .1.  Glearly  the  purpose  of  the 
provision  in  the  constitution  was  to  place  certain  restrictions  on 
laws  which  take  effect  earlier  than  the  time  fixed  but  not  to  limit 
or  restrict  legislation  which  becomes  effective  at  a  later  date. 
Consequently  to  delay  the  actual  taking-  effect  of  an  act,  it  is  suf¬ 
ficient  to  declare  that  it  shall  go  into  effect  at  a  later  time.^^ 

For  an  act  to  become  effective  earlier  than  July  I,  two  things 
are  necessary,  first  there  must  be  an  emergenc^^  (which  is  ex¬ 
pressed  in  the  act)  and  the  act  must  receive  a  two-thirds  vote  of 
all  members  elected  to  each  house.  The  declaration  of  the  emerg¬ 
ency  is  commonly  called  the  emergency  clause.  Probably  the  fram¬ 
ers  of  the  constitution  intended  by  this  language  to  require  a  state¬ 
ment  of  the  nature  of  the  emergency  in  the  acP®  and  a  consider¬ 
able  number  of  emergency  clauses  give  a  short  statement  of  the 

See  discussion,  Constitution  of  the  State  of  Illinois,  Annotated,  p.  96. 

See  Chapter  on  Forms,  subheading:.  Take  effect  clause. 

^*Mr.  A^andeventer,  the  only  dele.s:ate  to  the  constitutional  convention  of 
1870  who  discusses  the  question,  was  of  the  opinion  that  the  provision  would 
require  the  nature  of  the  emergency  to  be  clearly  defined  in  the  act.  Debates, 
Vplume  1,  p,  540, 


22 


situation  which  is  deemed  to  require  immediate  legislation.  In 
view  of  the  fact,  however,  that  the  court  has  expressly  declared 
that  the  legislature  is  the  sole  judge  of  the  existence  and  nature 
of  the  emergency  and  that  the  decision  of  the  law  making  body 
in  that  regard  will  not  be  reviewed,^'’  the  emergency  is  custo- 
marity  expressed  by  a  statement  to  the  effect  that  there  is  an 
emergency. 

The  most  common  emergency  clause  found  in  the  statute- 
book  is  in  a  resolution  form  of  statement ;  “AVhereas,  an  emerg¬ 
ency  exists,  therefore  this  act  shall  be  in  full  force  and  effect  from 
and  after  its  passage  and  approval.”  This  is  somewhat  awkward 
in  carefully  drafted  measures  and  after  examining  emergency 
clauses  in  use  in  other  states,  the  following  is  suggested  as  adequate 
and  more  simple :  ‘‘Because  of  an  emergency,  this  act  shall  take 
effect  upon  its  passage.” 

The  court  suggested  in  an  earl}^  case,  that  the  emergency  pro¬ 
vision  should  be  embodied  in  a  separate  and  distinct  clause.^®  Usu¬ 
ally  this  clause  is  made  a  separate  section.  The  position  of  the 
emergency  clause  in  the  bill  has  been  considered  in  the  following 
chapter,  “Arrangement  of  subject  matter.” 


^MVheeler  v.  Chubbuck.  16  Ill.  361.  (1855). 
»MVheeler  v.  Chubbuck.  16  Ill.  361,  (1855), 


ARRANGEMENT  OF  SUBJECT  MATTER. 


It  is  a  matter  of  some  importance  in  the  case  of  lengthy  and 
complex  bills  that  the  subject  matter  be  arranged  so  as  to  present 
the  substance  in  the  clearest  and  easiest  manner  to  the  reader.  This 
result  will  be  best  secured  by  the  careful  presentation  of  that  sub¬ 
stance  in  a  logical  and  orderly  development.  It  must  be  remem¬ 
bered  that  since  legislation  presents  a  widely  varying  mass  of  pro¬ 
visions,  no  set  pattern  can  be  made  to  which  all  bills  can  be  con¬ 
structed  to  fit.  Nor  can  there  be  any  set  order  of  provisions  for 
every  bill.  The  rules  laid  down  here  are  more  in  the  nature  of 
suggestions  to  be  adopted,  amended  or  discarded  as  convenience 
may  require.  But  it  is  hoped  by  an  analysis  of  the  skeleton  or 
structure  of  a  bill  to  arrive  at  some  suggestions  as  to  the  most 
efifective  arrangement  of  the  material. 

A  statute  is  composed  of  a  series  of  provisions  or  enactments. 
A  provision  may  express  the  leading  principle  of  the  measure  or 
some  proposition  subordinate  to  that  leading  principle ;  or  it  may 
be  one  of  a  number  of  equal  provisions  all  connected  as  to  subject 
matter  but  each  independent.  From  the  standpoint  of  the  relative 
importance  of  the  several  provisions  which  go  to  make  up  a  statute, 
there  are  three  types  of  statutes. 

1.  Acts  which  have  a  principle  provision  supported  by  sub¬ 
ordinate  enactments.  An  example  of  this  class  is  the  Illinois  Op¬ 
tometry  Act  of  1919.^^ 

2.  Acts  which  contain  several  related  main  provisions,  each 
one  of  which  has  subordinate  provisions.  The  Road  and  Bridge 
Act  of  1913®^  is  an  example  of  this  third  type. 

3.  Acts  which  consist  of  a  series  of  related  and  equal  provi¬ 
sions  all  dealing  with  one  subject.  The  Practice  Act  of  1907^®  is 
a  series  of  regulations  for  the  conduct  of  litigation  and  court  pro¬ 
cedure. 

It  will  be  noticed  that  the  examples  given  for  the  second  and 
third  types  are  revisions  or  consolidations  of  earlier  laws.  Prac¬ 
tically  all  independent  bills  which  do  not  revise  or  consolidate,  are 
concerned  with  a  single  leading  principle  and  fall  naturally  into 
the  first  class.  Thus,  in  the  Optometry  Act,  the  “core”  of  the  mea¬ 
sure  is  the  provision  that  it  shall  be  unlawful  to  practice  optometry 
without  a  license.  The  provisions  for  examination  of  applicants,  for 
the  issuance,  refusal,  revocation  and  renewal  of  licenses,  and  for  the 
payment  of  fees  are  the  administrative  machinery  to  make  the  main 


51  Hurd,  1919,  p.  2062. 

52  Hurd,  1919,  p.  2567. 
“Hurd,  1919,  p.  2275. 


24 


provision  effective.  Not  all  bills,  however,  are  pure  examples  of 
any  of  these  classes.  Some  involve  combinations  of  any  two  or 
all  three.  The  Criminal  Code,°^  as  enacted  in  1874,  does  not  fall  so 
readily  into  any  one  classification. 

The  bill-drafter  must,  at  the  outset,  visualize  the  elements  of 
the  proposed  bill  and  by  weighing  the  relative  importance  of  the 
several  provisions,  determine  to  which  class  the  measure  belongs. 
As  has  already  been  said,  nearh^  all  new  legislation  falls  within 
Class  1,  and  most  of  the  bill-drafter’s  work  will  have  to  do  with 
that  form.  The  suggestions  as  to  the  arrangements  for  bills  in 
Classes  2  and  3  may  l3e  briefly  stated. 

Bills  of  the  second  type  are  similar  to  those  in  Class  1,  except 
that  there  are  several  main  enactments  instead  of  one.  The  prin¬ 
ciples,  therefore,  suggested  for  the  arrangement  of  the  provisions 
of  bills  of  the  first  type  are  applicable  to  those  of  the  second’  class. 
Bills  of  the  second  class  should  be  divided  into  the  several  main 
divisions,  each  with  its  leading  principle.  Each  main  division  with 
its  subordinate  provisions  should  be  carefully  separated  from  the 
other  divisions  and  then  worked  out  in  complete  detail  .as  though 
it  alone  constituted  the  bill. 

The  arrangement  of  a  bill  that  is  composed  of  equal  provi¬ 
sions  relating  to  a  common  subject  must  be  governed  by  different 
principles.  Sometimes  there  is  a  natural  sequence  of  steps  in  a 
connected  account  and  this  suggests  a  logical  order  for  the  provi¬ 
sions.  Thus,  the  Practice  Act  of  1907  regulates  procedural  mat¬ 
ters  in  their  customary  order  in  litigation,  commencing  with  ser¬ 
vice  in  suits  and  ending  with  writs  of  error  and  appeals.  But 
there  may  not  be  a  natural  sequence  in  the  provisions  and  a  more 
arbitrary  order  must  be  adopted.  Division  I  of  the  Criminal  Code 
in  defining  and  punishing  crimes,  takes  the  offenses  alphabetically, 
commencing  with  abduction  and  proceeding  to  vagabond  and  wit¬ 
nesses. 

New  legislation  generally  takes  the  form  of  bills  in  Class  1, 
i.  e.  with  a  single  leading  principle.  Because  this  is  the  most  com¬ 
mon  form,  the  arrangement  of  such  a  bill  will  be  considered  at 
greater  length.  The  most  important  element  of  a  bill  of  this  char¬ 
acter  is  the  provision  stating  the  leading  principle  and  that  pro¬ 
vision  should  be  embodied  in  a  short  concise  section  and  placed 
as  near  the  beginning  of  the  bill  as  possible.  The  advantage  to 
be  gained  b}^  the  early  statement  of  the  principle  or  motive  of  the 
bill  is  that  the  reader  may,  by  reading  the  first  two  or  three  sec¬ 
tions  comprehend  the  drift  of  the  act.  It  enables  him  to  fix  clearly 
in  his  mind  the  body  or  “core”  of  the  legislation.  Having  mastered 
that  from  a  concise  statement,  he  is  prepared  to  proceed  with  ease 
to  the  details,  exceptions  and  special  provisions.  If,  on  the  other 
hand,  he  is  confronted  with  a  mass  of  details  without  a  clear  com¬ 
prehension  of  the  body  of  the  act,  he  must  mentally  support  the 
superstructure  until  he  is  able  to  discover  the  foundation  upon  which 
it  is  built. 


Hurd,  1919,  p.  970. 


25 


Frequently,  a  difficulty  will  arise  as  to  whether  the  predominat¬ 
ing  idea  is  expressed  in  a  declaration  of  the  law  as  it  affects  the 
individual,  or  in  the  as^ency  created  for  its  enforcement.  The 
relative  importance  of  the  two  provisions  must  be  the  first  consid¬ 
eration.  Thus,  a  board  may  be  created  for  a  specified  purpose  with 
certain  powers  and  duties.  The  administrative  features  are  wholly 
subordinate  to  the  establishment  of  the  board.  Sections  may  be 
required  creating’  crimes  and  providing  penalties  but  these  are 
merely  incidental  to  the  main  purpose.  The  Public  Utilities  Act 
of  1913^^  is  an  example  of  such  a  measure.  The  declaration  of 
the  principle  of  law  governing  public  utilities  is  section  32  of  Arti¬ 
cle  IV.  This  section  requires  that  service  be  adequate  and  rates 
or  other  charecs  just  and  reasonable.  Why  is  this  not  the  im¬ 
portant  feature?  For  the  reason  that  this  is  merelv  a  continuation 
of  the  common  law  principles  regarding  public  utilities.  There  is 
no  departure  from  existing  law  in  this  respect.  The  main  feature 
of  the  act  is  not  to  lay  down  any  new  principles  of  law,  but  to 
create  a  nejv  machinery  for  administering  the  old  law.  The  case 
is  quite  different  with  the  Illinois  Optometry  Act.  The  principle 
of  law  here  expressed  prohibits  the  practice  of  optometry  without 
a  state  license.  Vhthout  such  a  statute  anyone  might  practice  that 
profession  and  so  this  amounts  to  a  real  alteration  in  the  govern¬ 
ing  law.  So  with  the  Workmen’s  Compensation  Act.^®  The  old 
common  law  liability  for  damages  based  on  negligence  is  wiped 
out  and  a  new  system  of  compensation  for  injuries  substituted.  In 
each  of  these  laws,  the  alteration  of  the  existing  principles  of  law 
is  the  important  feature  of  the  act  and  the  powers  and  duties 
vested  in  the  Deoartment  of  Registration  and  Education,  in  the 
one  case,  and  the  Industrial  Commission,  in  the  other,  are  merely  the 
machinery  for  administering  the  new  principles  of  law. 

The  examples  given  illustrate  the  two  extremes  in  which 
either  the  provision  stating  the  law  or  the  provision  creating  the 
agency  for  its  enforcement,  clearly  predominates  in  importance. 
Between  these  extremes  come  many  bills  in  which  these  provisions 
are  more  equal  in  importance.  As  to  such  bills  two  suggestions 
can  be  made.  * 

1.  If  possible,  place  the  declaratory  provision  first  and  the 
administrative  feature  later.  Frequentlv,  the  statement  of  the  law 
will  require  a  reference  to  the  agenev  for  its  enforcement.  Refer¬ 
ential  phrases  such  as  “the  board  by  this  act  created”  may  be  used 
to  get  around  this  difficultv.  But  the  references  may  become  too 
complex  and  awkward  to  be  easily  carried  in  mind  by  the  reader 
and  convenience  and  ease  may  then  require  that  the  order  be 
reversed. 

2.  Sometimes  the  provisions  creating  the  agency  are  shorter 
and  less  complicated  than  the  declaration  of  the  legal  principle.  In 
that  case  it  may  be  better  to  state  first  the  more  simple  proposi¬ 
tion  and  having  disposed  of  it  shortly,  pass  on  to  the  lengthier, 
more  complex  provision. 


55  Hurd,  1919,  p.  2324. 
5®  Hurd,  1919,  p.  1450. 


26 


However,  there  are  some  provisions  which  may  precede  the 
statement  of  the  leading  principle.  Thus,  when  the  bill  provides 
a  short  title,  that  may  properly  be  placed  at  the  beginning.  Such 
a  provision  is  short  and  detached  from  the  subordinate  details  of 
the  bill.  It  does  not  tend  to  confuse  or  befog  the  statement  of  the 
law,  but  ma}^  be  dismissed  from  the  mind  of  the  reader  as  he 
passes  to  the  body  of  the  bill.  Occasionally  a  bill  will  have  a 
special  provision  which  may  properly  precede  the  main  provisions. 
Thus,  Section  1  of  the  Vocational  Education  Act  of  1919^^  accepts 
for  the  State  of  Illinois  the  benefits  of  a  Federal  Law  for  the  pro¬ 
motion  of*  vocational  instruction.  This  provision  is  distinct  from 
the  following  sections  which  establish  a  board  and  prescribe  its 
powers  and  duties,  and  its  brevity  and  importance  justify  its  po¬ 
sition  in  the  arrangement. 

Another  consideration  may  justify  such  an  arrangement;  the 
statement  of  the  leading  principle  may  require  some  explanatory 
matter  to  precede  it.  Thus,  where  the  terms  employed  in  a  bill  ^ 
require  definitions  for  an  understanding  of  the  provisions,  the  sec-' 
tion  containing  those  definitions  may  properly  come  at  the  first  of 
the  bill.  The  advisability  of  the  use  of  definitions  will  be  consid¬ 
ered  in  a  later  chapter,  and  only  their  place  in  the  arrangement  dis¬ 
cussed  here. 

Sometimes  it  is  necessary  to  apply  a  law  to  a  variety  of  cases 
or  a  variety  of  situations  calling  for  similar  treatment.  To  save 
the  repetition  of  a  recurring  series  of  words,  the  bill  may  adopt  an 
arbitrary  term  or  symbol  to  cover  artificially,  matter  which  it  could 
not  by  natural  interpretation  be  understood  to  embrace.  Thus, 
the  phrase  “noxious  weeds”  mav  be  employed  as  a  short  cut  for 
a  number  of  specified  plants.  Obviously,  the  explanation  of  the 
artificial  meaning  of  such  a  term  should  precede  its  use.  On  the 
other  hand,  when  a  word  is  correctly  and  properly  employed  to 
convey  its  accustomed  meaning  but  it  is  desired  to  limit  its  appli¬ 
cation  or  define  it  more  precisely,  such  a  definition  may  come  after 
its  use.  But  in  such  a  case,  the  definition  should  follow  shortly  and 
not  be  placed  at  a  distance  from  the  language  making  use  of  the 
word  defined. 

Frequently,  a  bill  or  a  provision  stating  a  principle  of  law 
is  not  designed  to  be  universally  applicable  but  either  affects 
only  specific  situations  or  else  provides  exceptions  from  its  general 
operation.  The  -particular  group  of  facts,  conditions  or  circum¬ 
stances  to  which  the  legal  principle  is  designed  to  apply  is  spoken 
of  as  the  legal  case.  If  the  situation  to  which  the  law  is  to  applv 
is  the  usual  and  general  one,  and  the  exception  is  the  unusual, 
the  principle  may  be  stated  generally  first  and  the  exception  or 
exemption  be  permitted  to  follow.®^  But  if  the  law  is  designed 
to  operate  not  generally  and  usually,  but  only  in  a  precise  situation 
or  case,  good  draftsmanship  demands  either  that  the  legal  case 
be  stated  before  the  principle  of  law  or  that  some  intimation  be 

57  Hurd.  1919.  p.  2834. 

5^  See  the  Motor  Vehicle  Law.  Secs.  8  and  20,  Hurd.  1919,  pp.  2621,  2626. 


27. 


i^iven  by  reference  to  that  ease.  If  the  Ic^al  ease  is  of  a  character 
that  can  be  expressed  briefly  it  may  be  stated  before  the  principle 
and  in  the  same  section.  Thus  section  1  of  a  bill  to  legalize  certain 
school  elections  says : 

“In  all  cases  where  a  majority  of  the  inhabitants  of  any  compact  and 
contiguous  territory  voting  on  the  proposition,  having  voted  at  any  election 
called  for  the  purpose  by  the  county  superintendent  of  schools,  in  favor  of 
the  organization  of  such  territory  into  a  community  high  school  district, 
and  when  at  a  subsequent  election  similarly  called  and  held  a  board  of  edu¬ 
cation  has  been  chosen  for  such  district.  .  . 

But  if  the  statement  of  the  legal  case  is  lengthy  and  involved  the 
reader  should  not  be  burdened  with  the  details  of  the  case  before  the 
principle  is  disclosed.  Acts  conditioned  on  a  local  referendum  furnish 
illustrations  of  legal  cases  which  frequently  require  several  sections 
for  statement.  A  bill  of  this  kind  should  contain  an  intimation  of 
this  case  by  referential  language  and  defer  the  statement  of  the  de¬ 
tails  of  the  case  until  after  the  statement  of  the  law.  The  first  sec¬ 
tion  of  an  act  providing  for  community  consolidated  school  districts 
passed  in  1919  is  as  follows  :  “Subject  to  the  conditions  of  sections 
84c,  84d,  84e,  84f  and  84g  of  this  Act,  any  compact  and  contiguous 
territory  bounded  by  school  district  lines  .may  be  organized  into  a 
community  consolidated  school  district.”®® 

The  subordinate  provisions  of  a  bill  vary  so  much  in  character 
and  the  combinations  are  so  many  that  no  rules  can  be  laid  down 
for  their  order.  However,  some  general  suggestions  can  be  made 
which  in  particular  cases  may  determine  or  influence  the  arrange¬ 
ment. 

1.  Give  precedence  to  the  more  important  provisions,  those  of 
normal  and  general  application  being  placed  first. 

2.  Or  if  the  provisions  of  a  bill,  or  some  of  them,  set  out  suc¬ 
cessive  steps  in  a  proceeding,  the  order  of  the  provisions  should  follow 
the  natural  sequence.  Thus,  a  provision  for  the  issuance  of  a  license 
should  precede  a  provision  for  its  revocation. 

When  a  bill  does  not  primarily  create  a  crime  but  the  prohibition 
of  certain  acts  is  required  as  a  necessary  provision  to  make  effective 
the  purpose  of  the  bill,  it  may  be  convenient  to  prohibit  those  acts 
as  they  occur  in  the  narrative  and  later  specifically  create  them  as 
crimes  and  provide  penalties  for  their  commission.®^ 

Local,  temporary  or  exceptional  provisions,  being  less  important, 
should  be  placed  at  the  end  of  the  bill.  Provisions  which  are  not 
closely  connected  with  the  narrative  of  the  bill  find  a  logical  place  at 
the  end.  Thus  an  emergency  clause,  which  makes  an  act  effective 
before  July  1,  or  a  “take  effect”  provision,  which  postpones  the 
going  into  effect  after  that  date,  is  customarily  placed  at  the  end.®^ 

5»Hurd,  1919,  p.  2719. 

Hurd,  1919,  p.  2707;  see  also  chapter  on  Forms,  subheading  Referendura 
provision. 

**1  See  an  Act  in  relation  to  the  sale  of  farm  seeds,  Hurd,  1919,  p.  56,  and 
Game  and  Fish  Code,  Hurd.  1919,  p.  1548. 

The  constitution,  Article  IW  Section  13,  says  the  emergency  “shall  be 
expressed  in  the  preamble  or  body  of  the  act.”  An  act  of  1871-2  relating  to 
Justices  of  the  Peace  in  Chicago  expresses  the  existence  of  an  emergency  in  a 
preamble  (Laws  1871-2,  p.  548)  but  instances  of  this  kind  are  rare.  The  word 
“preamble”  has  been  omitted  from  this  provision  by  the  constitutional  con¬ 
vention  of  1920. 


28 


If  the  bill  includes  a  provision  repealing  acts  or  parts  of  acts, 
this  provision  should  follow  the  body  of  the  act  but  precede  an 
emergency  clause  or  ‘hake  effect”  provision. 

The  subject*  matter  may  suggest  other  arrangements  equally 
proper  for  the  individual  case.  It  cannot  be  hoped  to  do  more  than 
suggest  the  principles  which  will  most  frequently  be  useful.  In  the 
working  out  a  particular  bill  there  will  often  be  variations  and  ex¬ 
ceptions.  Sometimes  the  arrangement  will  follow  a  combination  of 
the  principles  suggested.  The  Criminal  Code  has  the  sections  of  Di¬ 
vision  I  arranged  in  the  alphabetic  order ;  the  balance  of  the  act  both 
as  to  sections  and  divisions  follows  the  sequence  of  the  successive 
steps  of  a  criminal  proceeding.  It  has  been  said  with  a  measure  of 
truth  that  the  rules  of  good  drafting  are  the  rules  of  literary  com¬ 
position.  Certainly  it  is  true  that  a  careful  outline  of  the  subject 
matter  prepared  in  advance  of  the  actual  drafting  will  afford  a  logical 
and  intelligent  treatment  and  lay  the  groundwork  for  lucid  legislation. 

The  use  of  sections  is  important  to  make  the  separate  propositions 
of  a  bill  stand  out  clearly  by  dividing  the  text  accordingly.  It  is,  like 
paragraphing,  a  visual  aid  to  the  understanding.  The  length  of  sec¬ 
tions,  ordinarily,  will  be  governed  to  an  extent  by  the  treatment  of  the 
subject  but  the  sections  should  be  kept  short  not  only  as  an  aid  to 
visualization  but  for  convenience  'in  amending.  A  constitutional  pro¬ 
vision  prohibits  amendment  by  reference  and  requires  that  the  “sec¬ 
tion  amended  shall  be  inserted  at  length  in  the  new  act.”®^  Probably 
no  more  forceful  argument  could  be  made  for  short  sections  than  to 
call  attention  to  Section  1  of  Article  V  of  the  Cities  and  Villages  Act.®^ 
This  section  recites  in  ninety-eight  -clauses  the  powers  of  corporate 
authorities  of  cities  and  villages.  Few  sessions  of  the  General  As¬ 
sembly  pass  without  the  amendment  of  this  section  and  to  effect  the 
slightest  change  requires  the  re-enacting  of  the  whole  section  cover¬ 
ing  seven  or  eight  pages  of  the  session  laws.  Section  61  of  the 
County  Act  is  even  longer,  hut  probably  not  so  frequently  amended. 
In  1919  three  bills  amending  this  section  were  passed  covering  thirty- 
three  pages  in  the  session  laws.®^ 

The  •  County  Court  Act®®  contains  an  interesting  treatment  in 
this  respect  of  the  terms  of  the  various  county  courts.  In  order  to 
facilitate  amendments  to  the  enactment,  one  sentence  is  broken  up 
into  a  number  of  sections  so  that  each  dependent  clause  is  made  a 
section.  A  portion  of  this  will  illustrate  the  form  of  the  whole  act. 

“Sec.  8.  The  law  terms  of  the  County  Court,  except  as  otherwise  here¬ 
inafter  provided,  shall  commence  on  the  second  Monday  of  the  months 
as  follows,  to-wit:  In  the  Counties  of — 

Sec.  9.  Adams,  first  Monday  in  January,  May  and  August. 

Sec.  10.  Alexander  on  the  first  Monday  of  March,  July  and  November. 

Sec.  11.  Bond,  in  January,  June  and  November. 

Sec.  12.  Boone,  in  March,  June  and  December. 

Sec.  13.  Brown,  in  January  and  June.” 


“Constitution  of  1870,  Article  JV,  Section  13;  see  also  Veto  Messages,  1909, 
Senate  Journal.  1915,  p.  1674. 

•^Hurd,  1919,  p.  327. 

“Laws  1919.  pp.  370,  381.  392. 

“Hurd.  1919,  p.  906. 


29 


In  the  case  of  the  longer  sections  it  is  generally  an  advantage  to 
paragraph  as  frequently  as  the  text  will  permit. 

Another  useful  aid  in  the  clear  presentation  of  the  substance  of 
a  bill  is  found  in  some  cases  in  the  breaking  up  of  the  bill  into  articles 
as  well  as  sections.  The  purpose  of  grouping  sections  into  articles  is 
to  bring  together  the  sections  which  are  more  closely  related  to  each 
other  and  less  closely  connected  with  the  balance  of  the  bill. 

Ilbert,  speaking  of  the  use  of  articles,  cautions  against  excessive 
subdivision.  It  seems  doubtful,  however,  whether  there  is  any  great 
tendency  to  over-subdivide.  Two  considerations  must  be  borne  in 
mind  in  regard  to  the  advisability  of  dividing  a  bill  into  articles : 

1.  The  continuity  of  the  thought. 

2.  The  length  and  complexity  of  the  bill. 

The  first  consideration  must  be  whether  the  thought  breaks  up 
logically  into  related  but  distinct  parts.  An  arbitrary  subdivision  which 
is  uncalled  for  by  the  thought  itself  is  confusing  and  worse  than  use¬ 
less.  Just  how  distinct  this  break  between  the  parts  should  be  to 
justify  subdividing  must  depend  somewhat  on  the  length  of  the  bill 
and  its  clarity  in  other  respects.  There  would  be  no  advantage  in 
subdividing  a  bill  of  only  a  few  short  sections  no  matter  how  dis¬ 
tinct  or  unrelated  the  provisions  might  be.  On  the  other  hand,  as 
the  length  of  the  bill  increases,  the  greater  becomes  the  need  for  sub¬ 
division. 

When  a  bill  is  divided  into  parts,  each  part  should  be  numbered 
and  given  a  short  heading  descriptive  of  the  subject  matter  con¬ 
tained  in  it.  It  is  obvious  that  headings  or  titles  assist  not  only  in 
locating  particular  provisions  but  also  as  a  table  of  contents  to  dis¬ 
close  the  scope  of  the  whole  bill. 

There  has  not  been  uniformity  in  the  matter  of  numbering  sec¬ 
tions  where  the  sections  are  grouped  in  larger  divisions.  The  Cities 
and  Villages  Act  begins  each  article  with  a  new  series  of  section  num¬ 
bers.  The  section  numbers  in  the  Road  and  Bridge  Act,  on  the  other 
hand,  run  consecutively  through  the  act.  The  latter  system  is  prefer¬ 
able  for  the  reason  that  each  section  is  identified  by  its  individual  num¬ 
ber  without  reference  to  the  article,  thereby  eliminating  the  possibility 
of  confusing  sections  of  difterent  articles. 


PREAMBLES. 


It  was  thought  necessary  formerly  to  attach  to  many  statutes 
a  pre factory  statement  of  explanation  or  argument  called  a  preamble. 
The  preamble  is  generally  not  given  a  section  number  and  consists  of 
a  series  of  connected  clauses  each  introduced  by  “whereas.’’  It 
concludes  with  “therefore”  followed  by  the  enacting  clause  and  the 
body  of  the  act. 

The  Charities  Code  of  1912^"  has  a  different  form  of  preamble. 
Section  1  of  the  act  states  the  purpose  of  the  act  in  a  sentence  with¬ 
out  the  “whereas — therefore”  form. 

Generally  the  preamble  serves  no  useful  purpose  and  could  well 
be  omitted.  It  is  to  be  presumed  that  the  General  Assembly  is 
influenced  by  the  public  interest  when  it  passes  a  bill ;  consequently 
a  preamble  to  that  effect  adds  nothing.  An  example  of  such  a  pre¬ 
amble  is  found  in  an  act  for  the  enlargement  of  Lincoln  Park®®  which 

rebels :  Wt^ 

“Whereas,  the  health  and  the  best  interest  of  the  public  require  that 
Lincoln  Park  in  Chicago,  be  enlarged,  therefore,  .  .  .  .” 

A  little  more  specific  in  its  statement  is  this  preamble : 

“Whereas,  the  disease  known  as  foul  brood  exists  to  a  very  considerable 
extent  in  various  portions  of  this  state,  which,  if  left  to  itself,  will  soon  ex¬ 
terminate  the  honey-bees;  and  .... 

Whereas,  the  work  done  by  an  individual  bee-keeper  or  by  a  state 
inspector  is  useless  so  long  as  the  official  is  not  given  authority  to  inspect 
and,  if  need  be,  to  destroy  the  disease  when  found,  and 

Whereas,  there  is  a  great  loss  to  the  bee-keepers  and  fruit  growers  of 
the  state  each  year  by  the  devastating  ravages  of  foul  brood;  .  .  . 

But  there  can  be  no  justification  for  a  recital  such  as  this  stating 
that  an  evil  exists  and  is  causing  damage  and  that  the  measures  in 
the  bill  are  the  ones  which  in  the  judgment  of  the  General  Assembly 
will  most  effectively  combat  that  evil.  Such  may  be  presumed  from 
the  enactment  of  the  measure  itself.  It  would  seem  that  the  reasons 
for  the  establishment  of  a  state  colony  for  epileptics^®  are  so  ap¬ 
parent  as  to  make  their  recital  in  a  preamble  superfluous. 

The  courts  have  held  very  generally  that  in  case  of  ambiguity, 
reference  may  be  made  to  the,  preamble  to  determine  the  intent  and 
scope  of  an  act.'^  The  preamble  to  a  statute  is  no  part  of  an  act; 
still  it  may  assist  in  ascertaining  the  true  intent  and  meaning  of  the 
legislature.^-  Lord  Coke  speaks  favorably  of  the  preamble  as  “a 
good  means  to  find  the  meaning  of  the  statute,  and  a  true  key  to  open 

«‘Hurd.  1919,  p.  216.- 

«^Hurd.  1919,  p.  2101. 

'9  Hurd,  1919,  p.  90. 

•"Hurd,  1919,  p.  256. 

•^  Lewis’  Sutherland  Statutorj'  Construction,  Sec.  .341. 

•9  Edwards  v.  Pope.  3  Scammon  (Ill.)  464  (1842). 


31 


the  understanding  thereof.”  Rut  the  fact  that  ])reanibles  have  served 
a  useful  purpose  to  aid  in  the  construction  of  ])oorly  drafted  acts 
is  hardly  a  justification  for  their  use.  The  draftsman  should  strive 
to  state  clearly  his  law  in  the  body  of  his  bill  rather  than  to  rely  on 
what  amounts'  to  a  restatement  to  correct  the  faults. 

Then  too,  the  operation  of  a  preamble  on  the  language  of  the 
act  must  necessarily  be  uncertain.  A  preamble  does  not  aid  in  con¬ 
struing  an  act  unless  its  language  restricts  or  extends  the  scope  of 
the’  act  and  when  its  expressions  diverge  from  those  in  the  body  of 
the  act,  a  contradiction  results  which  can  only  be  eliminated  by  a 
judicial  decision. 

This  criticism  of  preambles  is  limited  to  their  use  in  general 
statutes.  There  are  special  cases  where  their  use  is  of  value. 

1.  Some  acts  are  based  on  extra-territorial  happenings  or  facts 
which  are  not  of  general  knowledge,  and  are  not  reasonably  apparent 
from  the  statute  itself.  Thus,  the  preamble  reciting  the  terms  of 
a  treaty  entered  into  between  the  United  States  and  Great  Britian 
justifies  and  explains  the  act  to  grant  the  use  of  the  canals  of  this 
state  to  the  inhabitants  of  the  Dominion  of  Canada  upon  conditions 
named. 

2.  Frecpiently  in  appropriation  acts  to  individuals,  a  statemeni 
of  the  facts,  is  incorporated  in  a  preamble. 

Even  in  such  case,  the  statement  of  fact  may  sometimes  be  in¬ 
corporated  conveniently  in  the  act  itself  as  was  done  in  an  act  for  the 
relief  of  Charles  Watters."^.  Section  I  reads : 

“The  sum  of  one  thousand  dollars  is  hereby  appropriated  for  the  relief 
of  Charles  Watters  who  was  seriously  injured  v/hile  engaged  in  the  perform¬ 
ance  of  his  duties  as  a  guard  at  the  Illinois  State  Penitentiary  at  Joliet.” 

If  the  facts  can  not  be  handled  in  a  subordinate  clause,  it  is 
better  perhaps  that  they  be  placed  in  a  preamble  rather  than  to 
have  the  law  enact  what  is  purely  recital.  Thus,  the  action  of  the 
Court  of  Claims  relative  to  the  claim  or  the  reason  why  the  claim 
was  not  presented  could  not  well  be  stated  elsewhere  than  in  a 
preamble.  Care  should  be  taken  to  cut  out  all  unnecessary  matter 
and  to  limit  the  number  of  “whereas”  clauses.  Two  appropriation 
acts  of  1919'^^  have  ten  clauses  each.  Preambles  of  this  length 
with  the  constant  repetition  of  “whereas”  are  ponderous  and  awk¬ 
ward. 

The  most  useful  function  of  the  preamble  is  in  connection  with 
resolutions.  These  are  not  of  a  law-making  character  in  Illinois,’^® 
and  the  preamble  can  be  used  to  contain  the  descriptive  or  argumen¬ 
tative  matter  which  prefaces  the  legislative  expression  of  opinion, 
feeling  or  desire. 


^3  Hurd,  1919,  p.  170. 

Lraws  1919,  p.  128. 

Laws  1919.  pp.  124,  126. 

‘3  Constitution  of  1870.  Article  IV,  S'ection  11;  Burritt  v.  Commissioners  of 
State  Contracts,  120  Ill.  322  (1887). 


3^ 


THE  ENACTING  CLAUSE. 


The  enacting  clause  or  style  is  the  short  introductory  phrase 
which  establishes  the  instrument  as  law.  The  constitution  of  Illi¬ 
nois  provides  that  “the  style  of  the  laws  of  this  state  shall  be :  ‘Be 
it  enacted  by  the  People  of  the  State  of  Illinois,  represented  in  the 
General  Assembly.’  An  enacting  clause  is  an  essential  part 
of  a  law,  and  an  enactment  without  it  is  void  and  inoperative.'^® 
Whether  any  variation  from  the  form  specified  will  invalidate 
an  act  has  not  been  judicially  determined,  although  the  Attorney 
General  has  held  that  the  insertion  of  the  words  “Forty-sixth”  im¬ 
mediately  before  “General  Assembly”  in  the  enacting  clause,  rend¬ 
ered  the  act  unconstitutional.'®  It  should  be  noted  that  the  court 
has  held  sufficient,  a  substantial  compliance  with  the  forms  for 
process  in  Article  \^I,  Section  33  of  the  constitution.  However, 
the  question  is  ah  academic  one  for  draftsmen,  AVhether  the  form 
is  mandatory  in  the  sense  that  a  slight  variation  ivould  invalidate 
the  act  or  not  it  is  the  duty  of  the  legislator  and  the  bill-drafter 
to  see  that  the  constitutional  charge  is  followed  exactly. 

It  is  customary  to  place  the  enacting  clause  within  the  first 
section  of  a  bill.  Formerly,  the  subsequent  sections  were  each 
introduced  by  a  shorter  enacting  phrase  such  as,  “Section  2.  And 
be  it  further  enacted Later,  these  enacting  phrases  were  dropped 
leaving  only  the  longer  one  in  Section  1.  Logically,  this  is  not 
the  proper  place  for  it.  Since  the  omissic^n  of  the  subsequent 
enacting  clauses,  the  one  enacting  clause  introduces  the  whole  act. 
In  fact  the  Supreme  Court  has  held  that  although  included  in  Sec¬ 
tion  1  it  “is  no  more  a  part  of  Section  1  than  it  is  a  part  of  Section 
49  or  50”  and  that  the  repeal  of  Section  1  without  a  saving  clause 
did  not  leave  the  remaining  sections  without  an  enacting  clause.®® 
It  would  have  been  better  when  the  individual  enacting  clauses 
were  dispensed  with,  to  have  taken  the  remaining  one  out  of  Sec¬ 
tion  1  and  placed  it  ahead  of  Section  1  in  this  manner; 

“Pc  it  enacted  by  the  People  of  the  State  of  Illinois,  repre¬ 
sented  in  the  General  Assembly: 

Section  1,  Whoever  sends,  etc.” 

However,  the  practice  of  including  the  enacting  clause  in  Sec¬ 
tion  1  is  so  firmh^  fixed  that  it  might  be  difficult  to  substitute  the 
more  logical  arrangement. 

^"Constitution  of  1870,  Article  IV,  Section  11. 

Burritt  v.  Commissioners  of  State  Contracts,  120  Ill.  322;  (1887);  Wenner 
V.  Thornton,  98  Ill.  156  (1881). 

‘®'Ileport,  Attorney  General,  1910,  p.  77. 

Pearce  v.  Vittum,  193  Ill.  192  (1901). 


33 


CONSTRUCTION  OF  SENTENCES. 


It  may  seem  elementary  in  discussing-  bill-drafting  to  refer 
to  and  emphasize  some  general  rules  of  composition.  But  the 
bill-drafter  deals  often  with  involved  and  intricate  situations  and 
his  enunciation  of  the  legislative  will  must  always  be  exact  and 
unambiguous.  The  elementary  rules  of  expression  have  for  him, 
therefore,  a  peculiar  importance.  IMuch  of  the  obscurity  and  am¬ 
biguity  of  statutes  is  due  to  long  and  poorly  constructed  sentences. 
The  bill-drafter  should  make  a  conscious  effort  to  keep  the  sen¬ 
tences  short.  This  will  make  more  sentences  and,  at  times,  add 
somewhat  to  the  length  of  a  bill  but  if  each  sentence  expresses  a 
single  thought,  it  will  be  easier  for  the  reader  to  grasp  that  thought. 
St3de  must  be  forgotten  and  particularly  the  desire  for  well-rounded 
periods  that  roll  along  sonorously.  It  does  not  matter  if  the  result 
is  choppy  and  broken ;  in  a  task  involving  the  difficulties  of  com¬ 
plex  social  regulation  the  constant  striving  must  be  for  clarity 
and  preciseness  rather  than  a  pleasant  appeal  to  the  ear. 

There  is  frequentl}^  a  tendency  to  compress  a  whole  series  of 
ideas  into  one  sentence  by  the  use  of  subordinate  clauses  and  con¬ 
junctions.  The  result  even  if  not  ambiguous,  is  at  least  obscure 
and  difficult.  Take  for  example  “An  Act  to  remedy  the  evils  con¬ 
sequent  upon  the  destruction  of  any  public  records  by  fire  or  other¬ 
wise,”  approved  and  in  force  April  9,  1872. 

“In  all  cases  under  the  provisions  of  this  act,  and  in  all  proceedings  or 
actions  now  or  hereafter  instituted  as  to  any  estate,  interest  or  right  in,  or 
any  lien  or  incumbrance  upon  any  lots,  pieces  or  parcels  of  land,  when  any 
party  to  such  action  or  proceeding,  or  his  agent  or  attorney  in  his  behalf, 
shall  orally  in  court,  or  by  affidavit,  to  be  filed  in  such  action  or  proceeding, 
testify  and  state  under  oath  that  the  original  of  any  deeds,  conveyances, 
or  other  written  or  record  evidence,  has  been  lost  or  destroyed,  or  not  in  the 
power  of  the  party  wishing  to  use  it  on  the  trial  to  produce  the  same,  and 
the  record  thereof  has  been  destroyed  by  fire  or  otherwise,  the  court  shall 
receive  all  such  evidence  as  may  have  a  bearing  on  the  case  to  establish  the 
execution  or  contents  of  the  deeds,  conveyances,  records,  or  other  written 
evidence,  so  lost  or  destroyed:  Provided,  that  the  testimony  of  the  parties 
themselves  shall  be  received  subject  to  all  the  qualifications  in  respect  of 
such  testimony  which  are  now  provided  by  law:  And,  provided,  further,  that 
any  writings  in  the  hands  of  any  person  or  persons  which  may  become  ad¬ 
missible  in  evidence,  under  the  provision  of  this  section  or  of  any  other 
part  of  this  act,  shall  be  rejected  and  not  be  admitted  in  evidence  unless 
the  same  appear  upon  its  face  without  erasure,  blemish,  alteration,  inter¬ 
lineation  or  interpolation  in  any  material  part,  unless  the  same  be  explained 
to  the  satisfaction  of  the  court,  and  to  have  been  fairly  and  honestly  made  in 
the  ordinary  course  of  business;  and  that  any  person  or  persons  making 
any  such  erasure,  alteration,  interlineation  or  interpolation,  in  any  such 
writing,  with  the  intent  to  change  the  same  in  any  substantial  matter,  after 
the  same  has  been  once  made  as  aforesaid,  shall  be  guilty  of*  the  crime  of 
forgery,  and  be  punished  accordingly;  and  that  any  and  all  persons  who 


34 


may  be  engaged  in  the  business  of  making  writings  or  written  entries  con¬ 
cerning  or  relating  to  lands  and  real  estate,  in  any  county  in  this  state 
to  whi-h  this  act  applies,  and  of  furnishing  to  persons  applying  therefor 
abstracts  and  copies  of  such  writings  or  written  entries  as  aforesaid,  for 
a  fee,  reward  or  compensation  therefor  and  shall  not  make  the  same  truly 
and  without  alteration  or  interpolation  in  any  matter  of  substance,  with 
the  view  and  intent  to  alter  or  change  the  same  in  any  material  matter,  or 
matter  of  substance,  shall  be  guilty  of  the  crime  of  forgery,  and  punished 
accordingly;  and  any  and  all  such  person  or  persons  shall  furnish  said 
abstracts  or  copies  as  aforesaid,  to  the  person  and  persons  from  time  to  time 
applying  therefor,  in  the  order  of  applications  and  without  unnecessary  de¬ 
lay,  and  for  a  reasonable  consideration  to  be  allowed  therefor,  which  in  no 
case  shall  exceed  the  sum  of  one  dollar  and  fifty  cents  for  each  and  every 
conveyance,  or  other  like  change  of  title,  shown  upon  such  abstract  or  copy; 
and  any  and  all  persons  so  engaged,  and  whose  business  is  hereby  declared 
to  stand  upon  a  like  footing  with  that  of  common  carriers,  who  shall  refuse 
so  to  do,  if  tender  or  payment  be  made  to  him  or  them  of  the  amount  de¬ 
manded  for  such  abstract  or  copy,  not  exceeding  the  amount  aforesaid,  as 
soon  as  such  amount  is  made  known,  or  ascertained,  or  of  a  sum  adequate 
to  cover  said  amount,  before  its  ascertainment,  shall  be  guilty  of  the  crime 
of  extortion,  and  be  punished  by  a  fine  of  not  less  than  $100,  and  not 
exceeding  $1,000  therefor,  upon  indictment  in  any  court  having  jurisdiction 
thereof,  and  shall  also  be  liable  in  an  action  on  the  case,  or  other  proper 
form  of  .  action  or  suit,  for  any  and  all  damages,  loss  or  injury,  which  any 
person  or  persons  applying  therefor  may  suffer  or  incur  by  reason  of  such 
failure  to  furnish  such  abstract  or  copy  as  aforesaid.”  (As  amended  by 
act  approved  and  in  force  March  30,  1874).^^ 

This  sentence,  after  stating  the  case  in  which  the  law  is  de¬ 
signed  to  operate,  makes  admissible  certain  evidence  to  supply 
missing  records,  qualifies  the  weight  to  be  given  to  the  testimoii}' 
of  parties  in  interest,  excludes  altered  writings  unless  the  alter¬ 
ation  is  explained,  defines  the  duty  of  persons  furnishing  abstracts, 
creates  three  separate  crimes,  provides  penalties  for  violations 
thereof,  and  adds  a  civil  liabilit}^  in  the  case  of  one  crime.  These 
various  matters  might  better  have  been  separated  and  placed  in 
several  sections  but  even  if  included  in  one  section,  it  would  be 
easier  to  grasp  if  each  provision  had  been  made  a  separate  sentence. 
Probably  in  this  case  no  very  serious  difficulty  results  but  the  first 
sentence  in  Section  2  of  “An  act  concerning  the  levy  and  exten¬ 
sion  of  taxes,’’^“  is  so  complicated  and  involved  that  judicial  con¬ 
struction  alone  can  settle  the  meaning  of  some  of  it. 

Of  course,  a  sentence  expressing  a  single  leading  principle 
may  include  a  number  of  coordinate  phrases  or  clauses  which  ren¬ 
der  it  complex  and  difficult.  Thus  there  may  be  a  series  of  subjects 
to  which  one  predicate  applies  or  a  number  of  predicates  may  be 
joined  to  a  single  subject.  The  statement  of  the  case  in  which  the 
law  is  to  operate  may  involve  a  variety  of  situations.  To  break  up 
such  a  sentence  so  as  to  give  to  each  coordinate  part  a  complete 
sentence  would  involve  much  repetition.  A  very  useful  expedient 
to  make  apparent  the  relative  value  and  position  in  the  sentence 
of  these  parts  is  the  detaching  and  numbering  of  these  clauses  as 
in  the  following  example. 


SI  Hurd,  1919,  p,  2447. 
82  Hurd,  1919,  p.  2543. 


35 


“A  negotiable  instrument  is  discharged: 

1.  By  payment  in  due  course  by  or  on  behalf  of  the  principal  debtor. 

2.  By  payment  in  due  course  by  the  party  accommodated,  where  the 
instrument  is  made  or  accepted  by  accommodation. 

3.  By  the  intentional  cancellation  thereof  by  the  holder. 

4.  When  the  principal  debtor  becomes  the  holder  of  the  instrument 
at  or  after  maturity  in  his  own  right. 

There  has  been  no  uniformity  in  the  matter  of  clesi.^natin^  de¬ 
tached  clauses.  The  Sales  Act*^  numbers  the  parap^raphs  within 
the  sec'tions  by  arabic  numerals  enclosed  in  parentheses  and  uses 
small  enclosed  italic  letters  for  the  clauses.  The  School  Law®’^  in¬ 
dicates  detached  clauses  by  the  words  “First,”  “Second”  etc.  The 
Fees  and  Salaries  Act®'’’  has  a  great  many  detached  clauses  without 
any  designation.  The  Uniform  Partnership  and  Limited  Partner¬ 
ship  Acts®^  have  an  individual  scheme  of  numbering  which  is  apt 
to  be  rather  confusing.  The  sentences  in  each  section  arc  num¬ 
bered  with  arabic  figures,  1,  2,  3,  etc.  Detached  clauses  are  in¬ 
dicated  b}^  small  letters  and  second  subordinate  sets  of  clauses  by 
Roman  numerals.  If  there  is  only  one  sentence  and  it  has  de¬ 
tached  clauses,  there  are  no  arabic  figures  but  the  clauses  arc 
marked  with  small  letters.  This  makes  it  appear  as  though  the 
first  markings  are  arabic  figures  in  one  section  and  then  small 
letters  in  another  section.  It  is  doubtful  whether  marking  or 
numbering  the  sentences  in  a  section  is  ever  necessary,  and  it  has 
the  disadvantage  of  introducing  an  extra  set  of  markings.  If  it 
is  desired  to  refer  to  a  particular  portion  of  a  section,  the  refer¬ 
ence  can  be  made  by  a  few  words  indicating  the  subject  matter. 
The  reference  to  the  subject  matter  is  clearer  and  more  easily  car¬ 
ried  in  the  mind  of  the  reader,  as  appears  from  the  two  examples 
quoted.  The  first  indicates  the  section  by  number  and  the  par¬ 
ticular  portion  referred  to,  by  subject  matter. 

“Sec.  14.  Each  of  the  following  constitutes  a  misdemeanor  punishable, 
upon  conviction,  by  a  fine  of  not  more  than  one  hundred  dollars. 

(h)  Violation  of  the  reasonable  sanitary  regulation  prescribed  by  the 
Department  of  Registration  and  Education  pursuant  to  the  provisions  of 
section  12  of  this  act.” 

The  following  illustrates  the  “blind”  reference : 

“(c)  A  partner  who  has  caused  the  dissolution  wrongfully  shall  have: 

I.  If  the  business  is  not  continued  under  the  provisions  of  paragraph 
(2b)  all  the  rights  of  a  partner  under  paragraph  (1)  subject  to  clause  (2a 
II),  of  this  section.”^ 

It  is  desirable  that  a  uniform  system  be  adopted  for  all  l^ills 
and  probably  as  simple  a  method  as  any  is  the  numbering  of  de¬ 
tached  clauses  with  arabic  figures  without  parentheses.  Sometimes 
a  second  subordinate  series  occurs  in  the  midst  of  the  first  series. 
Small  letters  may  be  used  to  designate  the  second  set  as  in  section 
75  of  the  General  Corporation  Act.®®  If  a  second  set  of  independent 
clauses  follows  in  the  same  sentence  or  section,  the  designation 

Negotiable  Instruments  Law.  Hurd,  1919,  p.  2035. 

8^  Hurd,  1919.  p.  2654. 

85  Hurd,  1919,  p.  2689. 

8«Hurd,  1919,  p.  1500. 

87  Hurd.  1919.  pp.  2218,  2229. 

88  Uniform  Partnership  Act,  section  38,  Hurd,  1919,  p.  2226. 

8»Hurd,  1919,  p.  734. 


36 


should  be  the  arabic  numerals  beginning  again  with  1,  2,  3,  etc.,, 
as  in  the  following  section : 

“Sec.  635.  A  person  who, 

1.  Displaces,  removes,  injures  or  destroys  any  rail,  sleeper,  switch, 
bridge,  viaduct,  culvert,  embankment  or  structure,  or  any  part  thereof, 
attached,  appertaining  to  or  connected  with  any  railway,  whether  oper¬ 
ated  by  steam  or  by  horses;  or 

2.  Places  any  obstruction  upon  the  track  of  any  such  railway;  or 

3.  Wilfully  discharges  a  loaded  fire-arm,  or  projects  or  throws  a  stone, 
or  any  other  missile,  at  a  railway  train,  or  at  a  locomotive,  car  or  vehicle 
standing  or  moving  upon  a  railway;  or 

4.  Wilfully  displaces,  removes,  cuts,  injures  or  destroys  any  wire,  in¬ 
sulator,  pole,  ear,  dynamo,  motor,  locomotive  or  any  part  thereof,  attached, 
appertaining  to  or  connected  with  any  railway  operated  by  electricity,  or 
wilfully  interferes  with,  or  interrupts  any  motive  power  used  in  running 
said  road,  or  wilfully  places  any  such  obstruction  upon  the  track  of  any 
such  railway,  or  wilfully  discharges  a  loaded  fire-arm,  or  projects  or  throws 
a  stone,  or  any  other  missile,  at  such  a  railway  train,  or  locomotive,  car,  or 
vehicle  standing  or  moving  upon  such  railway; 

Is  punishable  as  follows: 

1.  If  thereby  the  safety  of  any  person  is  endangered,  by  imprisonment 
for  not  more  than  ten  years; 

2.  In  every  other  case,  by  imprisonment  for  not  more  than  three  years, 
or  by  a  fine  of  not  more  than  two  hundred  and  fifty  dollars,  or  both.” 

However,  more  than  one  set  of  clauses  in  the  same  sentence 
is  apt  to  be  somewhat  confusing  and  should  be  avoided,  if  pos¬ 
sible,  by  the  bill-drafter. 

The  value  of  detaching  clauses  in  long  sentences  is  obvious. 
But  there  is  no  useful  purpose  served  by  breaking  up  a  short  sent¬ 
ence  and  detaching  a  single  clause.  One  of  the  reasons  for  detach¬ 
ing  clauses  is  to  show  the  relation  of  co-ordinate  parts  and  this 
reason  fails  when  there  is  only  one  clause.  In  the  Fish  and  Game 
Code®®  occurs  this  sentence  in  which  the  detached  part  might  well 
have  been  continued  without  any  break. 

“Section  33  Deer).  It  shall  be  unlawful; 

To  hunt,  kill,  take  or  destroy,  or  to  attempt  to  hunt,  kill,  take  or  destroy 
any  wild  deer  in  the  state  until  the  10th  day  of  November,  A.  D.  1925.” 


»»Hurd,  1919,  p.  1554. 


37 


PROVISOS. 


The  practice  of  stating*  a  principle  in  general  terms  and  then 
appending-  to  it  an  additional  statement  designed  to  limit  or  restrict 
or  cpialify  its  generality  has  contributed  greatly  to  the  length  and 
awkwardness  of  legislative  sentences.  The  qualifying  provisions 
are  known  as  provisos  and  are  generally  introduced  by  the  words, 
“provided”  or  “provided,  however.”  One  objectionable  feature  of 
the  use  of  provisos  is  the  consequent  tendency  to  state  a  proposi¬ 
tion  inaccurately  or  too  broadly  relying  on  the  proviso  to  correct 
and  limit  the  principle.  Thus  the  provision, 

“Whoever  shall  ride  or  drive  faster  than  a  walk,  over  any  bridge  in 
this  state,  owned  or  controlled,  either  the  whole  or  a  part  thereof,  by  any 
city,  village  or  town  of  this  state,  shall,  for  each  offense,  be  fined  in  a  sum 
not  exceeding  ten  dollars  nor  less  than  one  dollar.  .  . 

is  too  general  a  statement  to  create  the  crime  in  the  mind  of  the 

legislature,  as-  is  indicated  by  the  proviso  which  follows 

“Provided,  that  a  notice  shall  be  posted  on  such  bridge,  warning  against 
riding,  or  driving  on  such  bridge  faster  than  a  walk.  ...” 

The  crime  has  to  do  only  with  bridges  having  two  qualifica¬ 
tions.  1.  They  must  be  partly  or  wholly  owned  by  municipalities. 

2.  They  must  have  a  certain  notice  posted  upon  them.  The  sen¬ 
tence,  properly  constructed  should  have  so  described  the  bridges 
and  have  dispensed  with  the  proviso  clause. 

Section  20  of  Division  II  of  the  Criminal  Code^^  provides  that 

“All  offenses  herein  defin^jd  shall  be  prosecuted  and  on  conviction 
punished  as  by  this  act  is  prescribed,  and  not  otherwise;  and  all  offenses 
not  provided  for  by  statute  law,  may  be  punished  by  fine  or  imprisonment, 
in  the  discretion  of  the  court:  Provided,  the  fine  shall  in  no  case  exceed 
$500,  and  the  imprisonment  one  year.” 

There  is  no  excuse  for  so  phrasing  the  sentence  to  provide  an  un¬ 
limited  penalty  and  qualifying  it  by  a  proviso.  It  should  state  the 
limits  of  the  penalty  in  the  first  instance  as  “may  be  punished  by 
a  fine  of  not  more  than  $500  or  imprisonment  for  not  longer  than 
one  year.”  The  aim  should  be  to  define  precisely  the  limits  of  the 
particular  subject  matter  rather  than  to  include  too  much  and  then 
carve  off  a  portion. 

The  provision,  above  quoted,  which  penalizes  riding  or  driving 
faster  than  a  walk  over  municipal  bridges  illustrates  a  very  real 
danger  in  connection  with  the  use  of  provisos.  Commencing  with 
“provided,”  the  sentence  is : 

“Provided,  that  a  notice  shall  be  posted  on  such  bridge,  warning  against 
riding,  or  driving,  on  such  bridge,  faster  than  a  walk,  such  fine  to  be  re- 


»iHurd,  1919,  p.  39  6. 
Hurd,  1919,  p.  1059, 


38 


covered,  with  costs,  before  any  justice  of  the  peace  or  police  magistrate 
of  the  county  where  the  offense  is  committed,  upon  sworn  complaint  in 
writing,  upon  which  a  warrant  for  the  arrest  of  the  offender  shall  issue, 
and  it  shall  be  the  duty  of  every  constable  of  the  county,  and  every 
marshal,  policeman  and  police  constable,  and  all  other  officers  of  such  city, 
village  or  town,  owning  or  controlling  the  whole  or  in  part  such  bridge, 
having  the  power  to  make  arrests,  whenever  aforesaid  offense  is  com¬ 
mitted  in  the  view  of  such  officer  or  officers,  to  forthwith  take  in  custody 
the  person  or  persons  so  committing  aforesaid  offense,  and  bring  him  or 
them  before  any  justice  of  the  peace  or  police  magistrate  of  the  county, 
to  be  dealt  with  according  to  law,  and  such  officer  so  taking  in  custody  such 
offender,  or  any  officer  of  such  city,  village  or  town,  owning  or  controlling 
the  whole  or  a  part  of  such  bridge  where  such  offense  is  committed,  may 
make  the  complaint  upon  which  warrant  shall  issue  against  the  offender, 
all  fines  collected  under  this  act,  shall  be  paid  into  the  common  school 
fund  of  the  county.” 

Grammatically  all  of  this  portion  of  the  sentence  is  dependent 
upon  the  “provided”  and  is  included  within  the  exception.  But  the 
text  quite  clearly  indicates  that  only  the  short  provision  as  to  notice  is 
intended  as  a  limitation  of  the  enactment  preceding  the  proviso. 
We  have  then  the  arrangement  of  the  sentence  and  the  subject  matter 
indicating  different  constructions — a  situation  which  may  easily  in¬ 
volve  grave  difficulties.  If  the  use  of  a  proviso  is  ever  justified,  care 
should  be  taken  to  exclude  from  it  all  independent  extraneous  matter. 

The  general  rule,  as  stated  before,  should  be  to  make  the  first 
description  accurately  define  the  limits  of  the  subject' matter.  This 
is  not  always  possible  or  convenient.  Frequently  the  rule  is  most 
clearly  put  by  giving  it  generally  and  then  stating  the  qualifications 
to  that  rule  or  the  exceptions  excluded  from  it.  The  use  of  provisos 
in  this  situation  is  not  incorrect.  “The  office  of  a  proviso,  generally, 
is  either  to  except  something  from  the  enacting  clause,  to  qualify  or 
restrain  its  generality,  or  to  exclude  some  possible  ground  of  mis¬ 
interpretation  of  its  extending  to  cases  not  intended  to  be  brought 
within  its  purview. Take  for  example  section  10  of  Division  XV 
of  the  Criminal  Code 


“When  a  prisoner  has  been  committed  to  the  penitentiary  in  pursuance 
of  a  sentence  of  imprisonment  therein,  or  has  been  committed  to  the  county 
jail  pursuant  to  a  sentence  of  confinement  therein,  and  the  judgment  is 
affirmed,  the  time  of  service  under  the  sentence  of  such  prisoner  shall 
commence  to  run  from  the  time  of  such  commitment,  notwithstanding  a 
supersedeas  may  have  been  granted:  Provided,  if  any  such  prisoner  is  ad¬ 
mitted  to  bail  after  such  commitment,  the  time  during  v/hich  he  is  out 
upon  bail  shall  be  excluded  from  the  computation  of  his  time  of  service.” 


If  the  attempt  is  made  to  state  the  principle  without  excepting 
the  situation  which  is  defined  in  the  proviso,  the  sentence  becomes  very 
awkward.  In  other  words,  the  rule  must  be  stated  positively  and 
then  the  exception  negatived.  But — and  this  is  the  point  as  to  the  use 
of  provisos  in  any  case — the  proviso  may  be  stated  as  an  independent 
sentence  and  placed  immediately  after  the  rule  it  qualifies.  If  a  dis¬ 
junctive  is  desired,  “but”  or  “however”  or  “except”  may  be  used. 
These  words  are  as  definite  in  their  application  as  “provided”  and 
they  have  the  advantage  of  being  the  usual  and  popular  forms  of  ex- 


Huddleston  v.  Francis,  124  Ill.  195  (1888). 
3*  Hurd,  1919,  p.  1078. 


39 


pression.  Language  which  is  peculiarly  limited  to  legal  diction  should 
be  avoided  in  favor  of  ordinary  and  common  phraseology,  if  the  popu¬ 
lar  words  convey  the  meaning  equally  well. 

If  the  leading  principle  and  the  qualifying  statements  or  excep¬ 
tions  are  long,  they  may  be  given  separate  sentences  instead  of 
stringing  them  one  after  the  other  in  one  long  sentence.  It  will  be 
found  that  the  wording  can  indicate  the  relationship  clearly  without 
the’ necessity  for  the  more  awkward  arrangement.  Section  3  of  the 
Parole  Act^®  furnishes  an  illustration  of  a  sentence  with  a  proviso  of 
four  clauses  which  might  well  be  broken  up  into  five  sections. 

Attention  should  be  called  to  a  rather  frequent  misuse  of  the 
proviso  form  in  legislation.  Most  courts  have  recognized  that  while 
the  legitimate  function  of  the  proviso  is  to  modify  or  restrain  the 
preceding  enactment,  it  is  sometimes  used  as  an  independent  enact¬ 
ment  without  reference  to  the  limitations  of  the  preceding  statement 
and  where  that  intent  is  evident,  have  given  to  it  that  construction.^® 
The  word  “provided”  becomes,  in  such  cases,  a  mere  conjunction. 
Obviously,  there  is  no  excuse  for  an  arrangement  which  introduces 
a  conflict  between  the  form  of  the  sentence  and  the  subject  matter  and 
thereby  furnishes  a  subject  for  judicial  determination  as  to  which 
feature  is  controlling. 


»3Hurd,  1919,  p.  1085. 

Tn  re  Day,  181  I’l.  73  (1899)  ;  Hackett  v.  Chicago  City  Ry.  Co.,  235  Ill.  11  fi 
(1908);  People  v.  Continental  Beneficial  Association,  289  Ill.  40  (1919). 


40 


PHRASEOLOGY. 


Tense:  One  of  the  main  faults  to  be  charged  to  legislative 
enactments  is  the  use  of  archaic  and  stilted  language  which,  in 
some  way,  seems  to  have  become  associated  with  the  expression  of 
legal  principles.  Any  change  which  tends  to  replace  this  with  the 
ordinary  and  popular  words  of  current  speech,  so  far  as  practicable, 
is  an  improvement  in  the  form.  Of  course,  technical  terms  and 
legal  phrases  with  a  certain  definite  meaning  should  not  be  dis¬ 
carded  at  the  sacrifice  of  preciseness.  It  is  only  the  useless  barna¬ 
cles  of  legal  phraseology  which  are  to  be  condemned. 

The  unnecessary  use  of  the  future  tense  furnishes  an  illustra¬ 
tion  of  an  awkward  practice  more  or  less  general  in  legislation. 
Every  law  is  designed  to  afford  a  rule  for  a  continuing  present.  It 
should,  therefore,  speak  in  the  present  tense.  The  use  of  the  future 
tense  seems  to  be  a  subconscious  recognition  of  the  fact  that  laws 
are  prospective  in  the  sense  that  their  enactment  precedes  the 
acts  upon  which  or  the  situation  in  which  they  are  to  operate.  The 
present  tense  is  a  more  simple  and  natural  form  of  expression,  and 
for  that  reason  is  to  be  preferred.  This  is  obvious  from  a  compari¬ 
son  of  the  following  enactment  given  first  as  it  appears  in  the 
statute  book  with  the  future  tenses,  and  then  with  those  verb 

forms  replaced  by  the  present  tense. 

“Any  person,  firm  or  corporation  who  shall  send,  deliver  or  mail,  or  in 
any  manner  shall  cause  to  be  sent,  delivered  or  mailed,  any  paper  or 
document  simulating  or  intended  to  simulate  a  summons,  complaint,  writ 
or  other  court  process  of  any  kind,  to  any  person,  firm  or  corporation,  shall 
be  guilty  of  a  misdemeanor.  .  . 

“Any  person,  firm  or  corporation  who  sends,  delivers  or  mails,  or  in 
any  manner  causes  to  be  sent,  delivered  or  mailed,  ...  is  guilty  of  a 
misdemeanor.  ...” 

The  future  auxilliary  “shall”  disappears  with  the  substitution 
of  the  present  for  the  future  tense.  “Shall”  is,  however,  used  also 
to  express  a  command.  When  used  in  this  sense,  “shall”  is  neces¬ 
sary  and  proper. 

With  the  discarding  of  the  future  tense,  the  awkward  future 

perfect  gives  way  to  the  perfect,  as  in  this  sentence  : 

“In  all  cases  where  the  officers  who  shall  have  canvassed  the  election 
returns  shall  have  found  that  a  majority  of  the  voters  voting  upon  the 
question  shall  have  voted  in  favor  .  . 

Using  the  perfect  tense,  the  sentence  reads  as  follows: 

“In  all  cases  where  the  officers  who  have  canvassed  the  election  re¬ 
turns  have  found  that  a  majority  of  the  voters  voting  upon  the  question 
have  voted  in  favor  ...” 


»'Hurd,  1919,  p.  1011. 
98  Hurd,  1919,  p.  1218. 


41 


There  are  other  objections  to  the  use  of  the  future  and  future 
perfect  tense  which  may  be  noted.  The  future  auxiliary  “shall” 
become^  confused  with  the  imperative  “shall.”  This  may  have 
contributed  to  the  weakening-  of  the  imperative  form  by  judicial 
construction.  In  the  expression,  “shall  Ije  guilty  of  a  misdemeanor  and 
punished”  the  “shall”  does  duty  in  both  senses.  “Shall  be  guilty”  is 
merely  the  future  tense.  “(Shall  be)  punished”  is  imperative. 

Another  objection  is  that  there  is  a  tendency  on  the  part  of  a 
bill-drafter  employing  the  future  tense,  to  slip  back  into  the  more  cus¬ 
tomary  form  of  expression.  The  use  of  both  tenses  sometimes 

occurs  in  the  same'sentence,  as  in  section  46  of  the  Criminal  Code. 

“If  any  two  or  more  persons  conspire  or  agree  together,  or  the  officers 
or  executive  committee  of  any  society  or  organization  or  corporation,  shall 
issue  or  utter  any  circular  or  edit  .  . 


Preciseness — ejusdem  generis:  The  rules  of  literary  com¬ 
position  apply  to  bill-drafting  as  well  as  to  other  forms 
of  expression.  Indeed  the  virtues  of  good  English,  brevity,  sim¬ 
plicity,  clarity  and  preciseness,  are  even  more  important  in  legis¬ 
lation  than  in  other  writing  since  by  legislation  must  be  regulated 
and  controlled  all  the  various  rights  and  duties  of  human  relation¬ 
ship.  However,  statutory  expression  is  a  distinct  study  with  prob¬ 
lems  and  difficulties  peculiar  to  itself.  This  discussion  will  con¬ 
sider  particularly  some  of  the  faults  that  have  been  associated  with 
statutes  and  make  detailed  suggestions  limited  to  this  subject. 

It  is  essential  to  good  bill-drafting  that  the  subject  matter 
be  first  mastered  completely.  Prolixity  and  indirectness  are  fre¬ 
quently  the  result  of  a  vague  groping  for  the  principle  desired.  Good 
expression  cannot  follow  a  hazy  impression.  AVhen  the  principle 
is  clearly  understood,  state  it  without  unnecessary  verbiage.  Make 
each  word  justify  its  use.  But  in  the  desire  for  conciseness,  do  not 
treat  inadequately  a  complicated  subject.  Necessary  length  is  not 
a  fault. 

When  a  rule  can  be  stated  in  general  terms,  that  is  to  be 
preferred  to  an  enumeration  of  details.  The  section  of  the  Crim¬ 
inal  Code  concerning  forgery  and  counterfeiting  is  an  example  of 
a  statement,  which  might  be  condensed  greatly  by  the  use  of  gen¬ 
eral  language. 

“Every  person  who  shall  falsely  make,  alter,  forge  or  counterfeit  any 
record  or  other  authentic  matter  of  a  public  nature,  or  any  charter,  letters 
patent,  deed,  lease,  indenture,  writing  obligatory,  will,  testament,  codicil, 
annuity,  bond,  covenant,  post  note,  check,  draft,  bill  of  exchange,  contract, 
promissory  note,  due  bill  for  the  payment  of  money  or  property,  receipt 
for  money  or  property,  power  of  attorney,  any  auditor’s  warrant  for  the 
payment  of  money  at  the  treasury,  county  order,  or  any  accountable  receipt, 
or  any  order  or  warrant,  or  request  for  the  payment  of  money  or  the  deliv¬ 
ery  of  goods  or  chattels  of  any  kind,  or  for  the  delivery  of  any  instrument 
of  writing  or  acquittance,  release  or  receipt  for  money  or  goods,  or  any 
acquittance,  release  or  discharge  for  any  debt,  account,  action,  suit,  de¬ 
mand  or  other  thing,  real  or  personal,  or  any  transfer  or  assurance  of 
money,  stock,  goods,  chattels  or  other  property  whatever,  or  any  letter  of 


«»Hurd,  1919,  p.  991. 


42 


attorney  or  other  power  to  receive  money,  or  to  receive  or  transfer  stock 
or  annuities,  or  to  let,  lease,  dispose  of,  alien  or  convey  any  goods  or 
chattels,  lands  or  tenements,  or  other  estate,  real  or  personal,  or  any  ac¬ 
ceptance  or  indorsement  of  any  bill  of  exchange,  promissory  note,  draft,  or 
order,  or  assignment  of  any  bond,  writing,  obligatory,  or  promissory  note 
for  money  or  other  property,  or  any  ticket  or  pass  for  the  passage  of  any 
person  upon  any  railroad  or  other  conveyance,  or  for  the  admission  of  any 
person  to  any  entertainment  for  which  a  consideration  is  required,  or  any 
other  written  instrument  of  another,  or  purporting  to  be  such,  by  which 
any  pecuniary  demand  or  obligation,  or  any  right  in  any  property  is,  or 
purports  to  be  created,  increased,  conveyed,  transferred,  diminished  or 
destroyed;  or  shall  counterfeit  or  forge  the  seal  or  hand-writing  of  another, 
with  intent  to  damage  or  defraud  any  person,  body  politic  or  corporate, 
whether  the  said  person,  body  politic  or  corporate  reside  in  or  belong  to 
this  state  or  not;  or  shall  utter,  publish,  pass  or  attempt  to  pass  as  true 
and  genuine,  or  cause  to  be  uttered,  published,  passed,  or  attempted  to  be 
passed  as  true  and  genuine,  any  of  the  above  named  false,  altered,  forged 
or  counterfeited  matters,  as  above  specified  and  described,  knowing  the 
same  to  be  false,  altered,  forged  or  counterfeited,  with  intent  to  prejudice, 
damage  or  defraud  any  person,  body  politic  or  corporate,  whether  the  said 
person,  body  corporate  or  politic  reside  in  this  state  or  not;  every  person  so 
offending  shall  be  deemed  guilty  of  forgery,  and  shall  be  imprisoned  in  the 
penitentiary  not  less  than  one  year  nor  more  than  fourteen  years.”  ^ 

The  daiii’er  in  this  kind  of  an  enumeration  is  in  the  likeli¬ 
hood  of  omitting’  matters  which  should  be  included.  The  omission 
may  be  construed  as  a  deliberate  exclusion  by  the  familiar  rule  of 
construction,  expressio  unhis  cst  cxclusio  alter  ins.  Thus,  when  the 
constitution  sa3^s  “the  General  Assembly  may  vest  the  corporate 
authorities  of  cities,  towns  and  villages  with  power  to  make  local 
improvements  b}^  special  assessments,  or  by  special  taxation  of 
contiguous  property  or  otherwise,”-  “by  necessary  implication,  it 
(the  General  Assembly)  is  inhibited  from  conferring  that  power 
upon  other  municipal  corporations  or  upon  private  corporations.”^ 
However,  the  rule  that  the  expression  of  one  thing  or  one  mode  of 
action  in  an  enactment  is  an  exclusion  of  all  other  things  or  modes 
is  merely  a  presumption  to  aid  in  determining  the  legislative  in¬ 
tent.  In  the  words  of  the  court,  “the  maxim  .  .  .  should  never 
be  used  to  override  a  different  purpose  plainly  indicated.”^  This 
language  was  used  with  reference  to  a  statute  which  empowered 
cities  to  acquire  land  by  “purchase,  lease  or  gift”  for  certain  pur¬ 
poses.  If  the  expressio  limits  rule  were  applied,  acquisition  of  land 
by  any  other  means  would  be  forbidden.  But  the  court  held  that 
it  was  not  the  intention  of  the  legislature  to  restrict  the  power  of 
municipalities  to  the  methods  expressly  mentioned.  This  suggests 
to  the  bill-drafter  that  if  an  enumeration  is  used  which  is  not 
intended  to  be  exclusive,  that  intent  can  be  made  clear  b}'-  words 
to  that  effect.  Article  IX  of  the  Constitution,  furnishes  an  example 
of  a  statement  to  the  effect  that  an  enumeration  is  not  to  be  taken 
as  exclusive  of  objects  not  mentioned.  Section  1  of  that  article 
gives  the  General  Assembh"  power  to  tax  “peddlers,  auctioneers, 
brokers,  hawkers,  merchants,  commission  merchants,  showmen. 


iHurd,  1919,  p.  1012. 

2  Constitution  of  1870,  Article  IX,  Section  9. 

3  Updike  v.  Wright.  81  Ill.  49  (1876). 

■‘Helm  V.  City  of  Grayville,  224  Ill.  274  (1906). 


43 


jugglers,  inn-keepers,  grocery-keepers,  liquor-dealers,  toll  bridges, 
ferries,  insurance,  telegraph  and  express  interests  or  business,  ven¬ 
ders  of  patents  and  persons  or  corporations  owning  or  using  fran¬ 
chises  and  privileges  ...”  Section  2  provides  that  “The  specifica¬ 
tion  of  the  objects  and  subjects  of  taxation  shall  not  deprive  the 
General  Assembly  of  the  power  to  require  other  subjects  or  ob¬ 
jects  to  be  taxed,  in  such  manner  as  may  be  consistent  with  the 
principles  of  taxation  fixed  in  this  Constitution.” 

As  a  general  rule,  on  account  of  the  difficulty  of  making  an 
enumeration  complete,  words  descriptive  of  a  class  are  to  be  pre¬ 
ferred  to  a  list  of  the  members  of  that  class.  On  the  other  hand, 
loose  generalizations  are  to  be  avoided  where  complicated  and 
limited  situations  require  a  precise,  exact  definition.  When  a  gen¬ 
eral  rule  is  laid  down,  all  possible  applications  should  be  tested 
to  see  whether  their  inclusion  is  desirable.  Senate  Bill  No.  71 
introduced  in  the  Fifty-first  General  Assembly  undertook  to  regu¬ 
late  the  disposal  of  the  bodies  of  dead  animals.  Section  1  provided 
that 

“After  the  first  day  of  October,  1919,  it  shall  be  unlawful  for  any  per¬ 
son,  firm,  association  or  corporation  to  dispose  of  or  attempt  to  dispose  of 
the  body  of  any  dead  animal  by  burying,  burning  or  cooking,  without  a 
certificate  of  registration  issued  by  the  Department  of  Agriculture.” 

The  intention  was  to  require  the  licensing  of  persons  engaged 
in  the  business  of  disposing  of  dead  animals,  but  through  inadvert¬ 
ence  the  bill  was  worded  so  broadly  that  it  included  even  a  farmer 
who  desired  to  bury  a  dead  horse.  The  bill,  otherwise  desirable,  was . 
tabled  because  the  rule  was  too  general. 

Statutes. frequently  contain  an  enumeration  of  particular  persons 
or  things  and  follow  this  with  a  general  term  indicating  a  class  or 
group.  Although  the  matter  is  not  without  difficulty  in  a  great  many 
cases,  this  combination  is  to  be  avoided  whenever  the  particular  enum¬ 
eration  can  be  made  complete  or  the  general  class  can  be  definitely 
and  exactly  defined. 

The  bill-drafter  may  employ  in  its  full  sense  a  general  term  and 
precede  it  by  particular  words  merely  as  examples,  only  to  find  that 
the  general  phrase  is  limited  and  restricted  by  judicial  construction, 
to  the  kind  or  species  of  the  specific  words.  This  is  the  doctrine  of 
ejiisdent  generis.  Thus  the  term  “provisions”  construed  broadly  might 
be  held  to  include  tobacco  but  it  was  held  that  when  used  in  a  statute 
authorizing  municipalities  “to  regulate  the  sale  of  meats,  poultry, 
fish,  butter,  cheese,  lard,  vegetables  and  all  other  provisions”  it  could 
extend  only  to  provisions  of  the  same  character  as  those  specifically 
enumerated  and  therefore  meant  only  articles  of  food.®  A  civil 
rights  statute  provided  that  all  persons  should  “be  entitled  to  the  full 
and  equal  enjoyment  of  the  accomodations,  advantages,  facilities  and 
privileges  of  inns,  restaurants,  eating-houses,  barber  shops,  public  con¬ 
veyances  on  land  and  water,  theaters,  and  all  other  places  of  public 
accommodation  and  amusement.”  The  general  words  were  held  not  to 
include  a  drug  store.®  The  expression  “  counterfeit  or  spurious  coin, 

°  Gundling  v.  City  of  Chicago,  176  Ill.  340  (1898). 

a  Cecil  V.  Green.  161  Ill.  265  (1896). 


44 


forged  bank  notes  or  other  forged  instruments”  was  held  not  to  in¬ 
clude  forged  labels  and  trade-marks." 

The  rule  of  ejitsdem  generis,  however,  is  subject  to  exceptions 
and  qualifications  which  increase  its  danger  to  the  unwary  bill-drafter. 
“This  is  only  one  of  many  rules  of  construction,  all  of  which  are  to 
be  employed  for  the  attainment  of  the  same  end,  viz,,  that  of  ascer¬ 
taining  the  intention  of  the  Legislature  .  .  .  where  from  the  whole 
instrument  a  larger  intent  may  be  gathered,  the  rule  under  considera¬ 
tion  will  not  be  applied  in  such  manner  as  to  defeat  such  larger  in¬ 
tent.”® 

The  statute,  defining  burglary,  used  the  words  “any  dwelling 
house,  kitchen,  office,  shop,  storehouse,  warehouse,  malt-house,  still¬ 
ing-house,  mill,  pottery,  factory,  wharfboat,  steamboat  or  other  water 
craft,  freight  or  passenger  railroad  car,  church,  meeting  house,  school 
house  or  other  building.”  The  general  term  “other  building”  was 
held  to  include  a  chicken  house.  There  is  no  opportunity  for  an  ap¬ 
plication  of  the  rule  from  this  enumeration.  “What  building,”  said 
the  court,  “not  a  dwelling  house,  legally  speaking,  is  of  the  same  kind 
as  a  dwelling  house?”  “If  the  particular  words  exhaust  a  whole 
genus,  the  general  words  must  refer  to  some  larger  class. Still 
another  qualification.  “The  ejusdem  generis  rule  does  not  apply  where 
the  specific  words  signify  subjects  greatly  different  from  one  another, 
for  here  the  general  expression  might  very  consistently  add  one  more 
variety ;  in  such  case,  the  general  term,  must  receive  its  natural  and 
wide  meaning.”^®  So  the  bill-drafter,,  relying  on  the  application  of 
the  ejusdem  generis  rule,  may  find  his  general  term  given  a  more  in¬ 
clusive  meaning  than  intended. 

Unfortunately,  it  is  not  always  possible  to  avoid  the  use  of  a 
combination  of  specific  words  and  a  general  term.  It  may  be  impossi¬ 
ble  to  make  the  enumeration  compete ;  a  general  rule  may  be  difficult 
to  express  exactly  and  precisely.  In  1903,  the  General  Assembly 
passed  a  law  requiring  mine  owners  and  operators  to  provide  mines 
with  wash-rooms. “  The  Supreme  Court  held  the  act  to  be  class 
legislation  and  therefore  unconstitutional.  The  court  agreed  that  the 
miner  becomes  “covered  with  grease,  smoke,  dust,  grime  and  perspira¬ 
tion  ;  that  without  an  opportunity  to  bathe  and  change  his  attire,  he 
cannot  clothe  himself  comfortably  for  his  journey  through  cold 
weather  to  his  home ;  that  these  adverse  conditions  inevitably  lead 
to  colds,  consumption,  pneumonia  and  general  unhealthfulness  ...” 
But  “many  men  in  this  state  are  employed  in  the  foundaries  and  steel 
mills  who  work  in  a  higher  temperature  than  do  the  miners,  sur¬ 
rounded  by  conditions  deleterious  to  health  and  inimical  to  longev- 

ity.”^2 

As  a  result  of  this  opinion  an  act  was  passed  by  the  General  As¬ 
sembly  in  1913  which  made  the  duty  of  providing  wash-rooms  ap- 

^  White  V.  Wagar,  185  Ill.  195  (1900). 

*  Webber  v.  Oitv  of  Chicago.  148  Ill.  313  (1894). 

9  Gillock  V.  People,  171  Ill.  307  (1898). 

McReynolds  v.  People,  230  Ill.  623  (1907).  4 

”  Laws  1903,  p.  252. 

’^Starne  v.  People,  222  Ill.  189  (1906). 


46 


plicable  to  “every  owner  or  operator  of  a  coal  mine,  steel  mill,  foundry, 
machine  shop,  or  other  like  business  in  which  employees  become  cov¬ 
ered  with  grease,  smoke,  dust,  grime  and  perspiration  to  such  extent 
that  to  remain  in  such  condition  after  leaving  their  work  without 
washing  and  cleansing  their  bodies  and  changing  their  clothing,  will 
endanger  their  health  or  make  their  condition  offensive  to  the  public.” 

The  dilemma  of  the  bill  drafter  is  obvious.  No  enumeration 
could  be  made  of  the  occupations  sharing  the  evil  this  legislation  was 
designed  to  relieve ;  the  general  classihcation  is  uncertain  and  indefi¬ 
nite  because  it  merely  states  that  the  act  shall  apply  to  all  business 
where  the  health  and  comfort  of  the  pubic  require  the  law.  The  re¬ 
sult, — a  specific  mention  of  the  main  occupations  it  was  designed  to 
affect,  together  with  a  general  reference,  following  the  wording  of 
the  court’s  opinion,  to  other  employments  where  the  same  conditions 
prevail, — is  not  a  satisfactory  piece  of  bill-drafting. 

But  the  court  held  that  the  ejiisdcm  generis  rule  had  no  applica¬ 
tion  since  the  obvious  intent  was  to  meet  the  constitutional  objection 
to  the  earlier  statute  by  adding  the  general  term  to  include  other  oc¬ 
cupations  which  needed  the  same  sanitary  regulations.^^ 

Where  a  combination  of  specific  terms  and  general  words  is 
unavoidable,  the  only  way  to  avoid  the  possibility  of  a  restricted  con¬ 
struction  of  the  general  phrase,  is  to  show  by  express  words  that 
its  generality  is  not  to  be  limited  or  aff'ected  by  the  preceding  specific 
enumeration.  For  example,  in  the  “wash-room”  act  above  discussed 
there  could  have  been  no  doubt  of  the  proper  construction  to  be  placed 
on  the  general  phrase  if  the  General  Assembly  had  added:  “The  term 
‘other  like  business’  is  not  to  be  confined  or  restricted  to  the  specific 
businesses  mentioned  but  includes  all  businesses  of  the  character 
described.” 


Indefinite  and  uncertain  standards :  As  has  already  been 
said,  simplicity  is  a  cardinal  virtue  in  drafting  legislation.  Popular 
words  with  well  understood  meanings  are  to  be  preferred  to  ab¬ 
struse  terms.  However  in  the  desire  for  simplicity,  preciseness 
must  not  be  sacrificed.  Statutes  must  necessarily  treat  of  technical 
matters  and  in  the  various  fields  of  human  endeavor  recourse  must 
be  had  to  technical  terms  which  have  limited  significations  in  their 
own  plane.  In  a  statute  regulating  mining  we  may  expect  to  find 
a  provision  unintelligible  to  persons  unacquainted  with  that  in¬ 
dustry  such  as  the  following : 

“Every  mine  inspector  in  the  regular  inspection  of  mines  shall  measure 
with  an  anemometer  and  determine  the  amount  of  air  passing  in  the  last 
cross-cut  in  each  pair  of  entries  in  pillar  and  room  mines,  or  in  the  last 
room  of  each  division  in  long-wall  mines. 

The  Practice  Act  was  intended  not  for  the  general  public  but 
for  the  use  of  the  members  of  one  profession.  Consequently,  it 
is  not  necessary,  even  if  it  were  possible,  to  avoid  words  like 


People  V.  Solomon,  265  Ill.  28  (1914). 
i^Hurd,  1919,  p.  1972. 


46 


habeas  corpus,  certiorari  and  the  like,  or  to  render  intelligible  to  the 

general  public  a  provision  like  this : 

“It  shall  not  be  necessary,  in  any  pleading,  to  make  profert  of  the  in¬ 
strument  alleged ;  but  in  any  action  or  defense  upon  an  instrument  in 
writing,  whether  under  seal  or  not,  if  the  same  is  not  lost  or  destroyed, 
the  opposite  party  may  have  oyer  thereof  and  proceed  thereon  in  the  same 
manner  as  if  profert  had  been  properly  made  according  to  the  common 
law.”  “ 

In  statutes  concerning  the  public  generally  the  courts  will,  if 
at  all  possible,  give  to  words  their  usual  and  popular  meaning.^® 
Ordinary  words  should,  therefore,  be  used  in  their  most  general 
sense.  For  instance  “laborer”  in  one  sense  means  anyone  who 
works  with  his  hands.  That  may  be  called  a  technical  definition. 
Its  popular  signification  is  an  ordinary  laborer  or  day  workman. 
The  court  has  consequently  held  that  when  used  in  the  Civil  Ser¬ 
vice  Law  it  did  not  include  a  skilled  artisan  like  a  carpenter.^' 

Of  course,  this  is  not  an  invariable  rule  of  construction.  In 
seeking  to  give  effect  to  what  is  deemed  to  be  the  legislative  intent, 
not  only  may  a  less  general  meaning  be  given  a  word  but  the 
court  may  recognize  an  incorrect  use  of  a  word  and  let  it  convey 
a  meaning  which  it  does  not  properly  bear.  Thus  the  Appellate 
Court  has  said;  “Numerous  cases  indicate  that  there  has  been 
a  tendency  in  the  profession  to  confound  the  two  words  ‘cost’ 
and  ‘fees.’  In  the  ordinary  sense,  ‘costs  are  an  allowance  to  a 
party  for  expenses  incurred  in  conducting  his  suit ;  fees  are  com¬ 
pensation  to  an  officer  for  services  rendered  in  the  progress  of  the 
case.’ 

V\diile  the  general  rule  is  that  words  will  be  given  their  “com¬ 
mon  and  popular  acceptation  and  import,”  when  technical  words 
arc  used  in  a  statute  the  court  will  presume  that  they  have  been 
used  by  the  legislature  in  their  technical  sense. This  is  particu¬ 
larly  important  in  connection  with  the  use  of  words  which  have 
acquired  a  well-understood  legal  signification.  Thus  “actions  of 
account”  is  a  technical  term  indicating  a  form  of  action  and  is  not 
equivalent  to  “actions  on  accounts.”^®  In  construing  a  statute 
which  used  the  expression  “plead  set-off  to  the  action”,  the  court 
says,  “words  of  known  legal  import  are  to  he  considered  as  having 
been  used  by  the  legislature  in  that  known  sense,  or  according  to 
their  strict  acceptation,  unless  there  appears  a  manifest  intention 
to  use  them  in  their  common  or  popular  sense. “Crime”  by 
common  usage  is  S3monymous  with  “felony,”  the  Supreme  Court 
has  said  but  its  legal  signification  and  the  one  which  the  court  will 
give  it  in  statutes  is  broader  and  comprehends  all  offenses  against 
the  public."^  The  word  “family”  when  used  in  statutes  has  been 


1'^  Hui’d,  1919,  p.  2282. 

i^Crozer  v.  People,  206  Ill.  464  (1904);  Culver  v.  Waters,  248  Ill.  163  (1911); 
Rufla  v.  Industrial  Board,  283  Ill.  550  (1918);  Fowler  v.  Johnston  City  Coal  Co., 
292  Ill.’  440  (1920). 


People 
Galpin 
’9  Bedell 
•-’«  Bedell 
S'teere 


v 

V 

V 
w 

v. 


Board  of  Trustees,  283  Ill.  494  (1918). 

City  of  Chicago,  159  Ill.  App.  135  at  166  (1910). 
Jannev,  4  Gilman  (Ill.),  193  at  206  (1847). 

.Tnnnev,*  4  Gilman  (Ill.),  193  at  206  (1847). 
Brownell.  124  Ill. ‘  27  (1888). 


-2  Van  Meter  v.  People,  60  Ill.  168  (1871). 


47 


^iven  a  variety  of  meanings  but  not  the  popular  one  of  parents 
with  the  children  without  regard  to  residence. Unless  the  context 
clearly  indicates  a  different  intent,  the  words  “heir”,  “convey 
“person”  and  “action”  convey  a  limited  meaning  rather  than  the 
popular  understanding. 

A  great  many  common  words  are  descriptive  of  a  quality  with¬ 
out  defining  its  limits  or  fixing  a  precise  standard.  Terms  like 
“due,”  “proper”,  “dangerous,”  “sufficient,”  “extreme,”  “excessive,” 
“necessary,”  “immediate,”  “forthwith”  do  not  convey  an  exact  im¬ 
pression  but  make  an  appeal  to  the  judgment.  Statutes  should  be 
precise  and  certain,  laying  down  a  definite  rule  of  conduct.  Words, 
therefore,  which  express  a  quality  which  may  be  more  or  less,  should, 
so  far  as  possible,  be  avoided  in  statutory  language.  It  is  not  in¬ 
tended  to  suggest  that  this  is  always  possible.  The  law  relating 
to  private  wrongs  is  built  about  such  terms  as  “reasonable  care,” 
“proximate  cause”  and  “contributory  negligence”  and  no  amount 
of  judicial  definition  or  application  to  varying  situations  has  served 
to  make  them  convey  more  than  an  approximate  impression.  Fre¬ 
quently  municipalities  have  prohibited  the  emission  of  “dense 
smoke.”  Obviously  the  adjective  “dense”  does  not  clearly  define 
the  offense  nor  apprize  the  public  how  much  smoke  may  be  set 
at  large  without  constituting  a  violation.  A  criminal  statute  which 
does  not  inform  a  person  whether  or  not  his  act  infringes  the 
law  is,  to  say  the  least,  unfortunate.  Such  an  ordinance  of  the 
city  of  Chicago  was  sustained  against  the  objection  of  indefinite¬ 
ness  by  the  Supreme  Court. The  difficulty  of  giving  a  more 
precise  definition  is  well  illustrated  by  the  court’s  attempt  to  tell 
what  “dense  smoke”  means.  “The  terms  used  will  be  understood 
as  commonly  employed,  and  this  court  will  understand  by  ‘dense 
smoke,’  precisely  what  everybody  else  does  that  has  ever  seen 
a  volume  of  dark,  dense  smoke  as  it  comes  from  the  smoke-stack 
or  chimney  where  common  soft  or  bituminous  coal  is  used  for 
fuel  in  any  considerable  quantities.” 

“In  order  to  constitute  a  crime,  the  act  must  be  one  which 
the  party  is  able  to  know  in  advance  whether  it  is  criminal  or  not. 
The  criminality  of  an  act  cannot  depend  upon  whether  a  jury 
may  think  it  reasonable  or  unreasonable.  There  must  be  some 
definiteness  and  certainty.”"^  Two  statutes  of  the  state  of  Texas 
both  held  void  furnish  examples  of  the  use  of  indefinite  and  uncer¬ 
tain  terms.  One  prohibited  labelling  certain  feed  stuff  v/ith  a  per¬ 
centage  that  varied  “substantially”  from  the  actual  contents.  “Evi¬ 
dently,”  the  court  said,  “different  persons  might  differ  as  to  what 
would  be  ‘substantially’  such  larger  percentage. The  other 
statute  prohibited  the  operation  of  motor  vehicles  ‘v.diose  front 
lamps  shall  project  forward  a  light  of  such  glare  and  brilliancy  as 
to  seriously  interfere  with  the  sight  of,  or  temporarily  blind  the  vision 
of,  the  driver  of  a  vehicle  approaching  from  an  opposite  direction.” 


23  See  Rock  v.  Haas,  110  Ill.  528  (1884). 

24  Harmon  v.  City  of  Chicago,  110  Ill.  400  (1884). 
25Tozer  V.  U.  S.  -(C.  C.)  52  Fed.  917  (1892). 
20Cogdell  V.  State,  193  S.  W.  675  (1917), 


48 


• 

In  the  opinion  the  court  uses  this  language :  “AA^hat  degree  of  in¬ 
terference  is  serious  is  a  matter  not  fixed  by  the  Legislature ;  the 
glare  and  brilliancy  are  not  described  by  any  standard  that  is  cer¬ 
tain,  that  may  be  known  in  advance  by  the  citizen ;  nor  is  there  by 
the  Legislature  any  rule  fixed  for  deciding  at  what  point  they  reach 
the  prohibited  degree  of  brilliancy.”"^ 

An  Indiana  Statute  prohibited  the  hauling  ‘‘over  an^^  turn¬ 
pikes  or  gravel  roads  at  any  time  when  the  same  is  thawing 
through,  or  is  by  reason  of  wet  weather  in  condition  to  be  cut  up 
and  injured  by  heavy  hauling,  a  load  on  a  narrow-tired  wagon 
of  more  than  twenty  hundred  pounds,  or  on  a  broad-tired  wagon  of 
more  than  twenty-five  hundred  pounds.”  The  court  in  holding  the 
statute  void,  said : 

“There  must  be  some  certain  standard  by  which  to  determine 
whether  an  act  is  a  crime  or  not ;  otherwise,  cases  in  all  respects 
similar,  tried  before  different  juries,  might  rightly  be  decided  dif¬ 
ferently  .  .  .  because  of  the  difference  of  conclusions  of  different 
judges  and  juries  based  upon  their  individual  views  of  what  should 
be  the  standard  of  comparison  of  tires,  derived  from  their  varying 
experiences,  or  the  opinions  of  witnesses  as  to  what  difference 
of  width  of  tires  would  constitute  one  Avagon  a  narrow-tired  wagon 
and  another  a  broad-tired  wagon.  The  words  ‘narrow’  and  ‘broad’ 
describe,  not  certain,  but  uncertain,  comparative  Avidths,  and,  no 
standard  of  comparison  being  proAuded  by  the  laAAg  the}"  render 
the  phrases  in  Avhich  they  occur  uncertain  and  indefinite.”"* 

Almost  as  properly  could  objection  haA"e  been  made  to  the 
description  of  another  essential  element  of  the  crime — the  condi¬ 
tion  of  the  roads.  AMiether  they  are  “thaAving  through  or  .  .  . 

in  condition  to  be  cut  up  and  injured  by  heaAW  hauling”  might  AA'ell 
be  a  matter  upon  Avhich  indiAudual  opinion  AA"ould  be  at  variance. 

States  regulating  the  use  of  motor  A^ehicles  have  in  a  number 
of  instances  prohibited  their  operation  “at  a  speed  greater  than  is 
reasonable  and  proper.”  This  AA"as  held  A"oid  for  indefiniteness  bA" 
the  courts  of  Georgia^®  and  Texas.**’  In  Ohio*’  and  Nebraska** 
similar  proAusions  AA"ere  sustained.  The  Illinois  laAA"  on  this  sub¬ 
ject  makes  unlaAvful  the  driAung  of  a  motor  vehicle, 

“At  a  speed  greater  than  is  reasonable  and  proper  ha">ring  regard  to 
the  traffic  and  the  use  of  the  way  or  so  as  to  endanger  the  life  or  limb  or 
injure  the  property  of  any  person.  If  the  rate  of  speed  of  any  motor  vehicle  or 
motor  bicycle  operated  upon  any  public  highway  in  this  State  where  the 
same  passes  through  the  closely  built-up  business  portions  of  any  incor¬ 
porated  city,  town  or  village  exceeds  ten  (10)  miles  an  hour  or  if  the  rate 
of  speed  of  any  motor  vehicle  or  motor  bicycle  operated  on  any  public 
highway  in  this  State  where  the  same  passes  through  the  residence  por¬ 
tions  of  any  incorporated  city,  town  or  village  exceeds  fifteen  (15)  miles 
an  hour  or  if  the  rate  of  speed  of  any  motor  vehicle  or  motor  bicycle  op¬ 
erated  on  any  public  highway  in  this  State  outside  the  closely  built-up 
business  portions  and  the  residence  portions  within  any  incorporated  city. 


27  Griffin  v.  State,  218  S.  W".  494  (1920). 

2*  Cook  V.  State.  26  Ind.  Aon.  278  (1901  ). 

2»  S'trickland  v.  Whatley.  142  Ga.  802  (1914). 

Solan  and  Billings  v.  Pasche.  153  S.  W.  672  (1913). 

31  State  V.  Schaeffer.  96  Ohio  St.  215  (1917). 

32  Schultz  V.  State.  89  Neb.  34  (1911). 


49 


town  or  village  exceeds  twenty  (20)  miles  an  hour  or  upon  any  public  high¬ 
way  outside  of  the  limits  of  an  incorporated  city,  town  or  village  if  the  rate 
of  speed  exceeds  twenty-five  (25)  miles  per  hour,  such  rates  of  speed  shall 
be  prima  facie  evidence  that  the  person  operating  such  motor  vehicle  or 
motor  bicycle  is  running  at  a  rate  of  speed  greater  than  is  reasonable  and 
proper  having  regard  to  the  traffic  and  use  of  the  way  or  so  as  to  endanger 
the  life  or  limb  or  injure  the  property  of  any  person.” 

The  Supreme  Court  in  sustaining  this  provision,  says :  “There 
can  be  no  question  that  counsel  for  plaintiff  in  error  is  right  in 
arguing  that  in  creating  an  offense  by  a  statute  which  was  not  a 
crime  at  common  law  such  statute  must  be  sufficiently  certain  to 
show  what  the  legislature  intended  to  prohibit  and  punish,  other¬ 
wise  it  will  be  void  for  uncertainty. 

If  the  law  is  of  such  doubtful  construction  and  describes  the 
act  denominated  as  a  crime  in  terms  so  general  and  indeterminate 
as  to  make  the  question  of  criminality  dependent  upon  the  opinions 
of  the  individuals  who  may  happen  to  constitute  the  court  and 
jury,  and  of  such  a  nature  that  honest  and  intelligent  men  are 
unable  to  ascertain  what  particular  act  is  condemned  by  the  State, 
the  law  is  incapable  of  enforcement  and  will  be  held  to  be  null  and 
void.  The  dividing  line  between  what  is  lawful  and  what  is  unlaw¬ 
ful  can  not  be  left  to  conjecture.  This  law,  however,  the  constitution¬ 
ality  of  which  is  questioned,  does  not  leave  to  conjecture  when  the 
statute  is  violated.  If  the  only  provision  of  section  10  were  its  first 
sentence  there  might  be  some  merit  in  the  argument  of  counsel  that  the 
construction  of  the  statute  is  subject  to  conjecture.  The  section  further 
provides  the  exact  speed,  which  if  exceeded  in  various  classifica¬ 
tions  of  localities  shall  be  prima  facie  evidence  of  a  violation  of 
the  law  .  . 

It  is  obvious  that  the  same  standard  of  preciseness  is  not  pos¬ 
sible  in  all  statutes.  As  an  example  of  the  kind  of  thing  which 
can  not  be  stated  in  terms  mathematically  exact,  consider  the  pro¬ 
vision  in  the  Criminal  Code  relating  to  self-defense. 

“If  a  person  kill  another  in  self-defense,  it  must  appear  that  the  danger 
was  so  urgent  and  pressing  that  in  order  to  save  his  own  life,  or  to  prevent 
his  receiving  great  bodily  harm,  the  killing  of  the  other  was  absolutely 
necessary;  and  it  must  appear  also,  that  the  person  killed  was  the  assailant, 
or  that  the  slayer  had  really,  and  in  good  faith,  endeavored  to  decline  any 
further  struggle  before  the  mortal  blow  was  given.” 

The  question  then  in  this,  as  in  all  statutes,  is  not  whether  the 
rule  of  conduct  is  stated  with  a  certain  degree  of  preciseness,  but 
rather  whether  the  rule  is  stated  as  definitely  as  possible  in  the 
particular  case. 

The  defect  of  indefiniteness  may  render  unenforecable  any 
type  of  legislative  enactment  but  the  courts  have  been  more  ready 
to  declare  void  statutes  with  penal  provisions  because  of  the  general 
rule  that  such  statutes  should  be  strictly  construed.  But  from 
the  standpoint  of  careful  bill-drafting,  persons  upon  whom  laws 
operate  are  entitled  to  know  clearly  and  definitely  their  civil  rights 
as  well  as  criminal.  The  instances  cited  have  all  been  criminal  stat¬ 
utes  which  have  been  declared  void  but  whether  or  not  a  law  can 


People  v.  Beak,  291  Ill.  449  (1920). 
^  Hurd,  1919,  p.  1024. 


50 


survive  a  judicial  inspection  is  not  a  proper  standard  for  the  bill- 
drafter.  That  a  statute  has  survived  the  constitutional  objection 
of  indefiniteness  means  merely  that  it  has  satisfied  the  minimum 
requirement  for  legislative  enactments.  The  efforts  of  the  bill- 
drafter  should  be  toward  expressing  legislation  so  lucidly  that  the 
objection  of  uncertainty  cannot  even  be  raised. 

Attention  should  be  called  to  one  type  of  legislation  which 
may  be  said  to  form  an  exception  to  the  principle  of  preciseness. 
The  extension  of  governmental  supervision  over  the  businesses  and 
activities  of  individuals  has  enormously  increased  the  amount  of 
regulatory  provisions.  In  fact,  so  bulky  and  detailed  has  this  regu¬ 
lation  become  that  a  large  part  of  it  has  been  handed  over  to  ad¬ 
ministrative  officials  and  boards.  Section  I  of  Article  IV  of  the 
constitution  vests  the  legislative  power  in  the  General  Assembly. 
This  has  been  construed  to  mean  that  the  General  Assembly  cannot 
divest  itself  of  this  power  bv  conferring  it  elsewhere.^®  But  as 
was  said  in  an  early  decision  in  this  state :  “While  the  leg¬ 
islature  may  not  divest  itself  of  its  proper  functions,  or 

delegate  its  general  legislative  authority,  it  may  still  author¬ 
ize  others  to  do  those  things  which  it  might  properly,  yet 

can  not  understandingly  or  advantageously  do  itself.”^®  It  is  not 
a  delegation  of  legislative  power,  within  the  meaning  of  this  pro¬ 
hibition,  so  long  as  the  act  determines  the  policy  of  the  law  and 
prescribes  a  method  for  its  application,  and  is  final  and  complete 
in  all  its  terms  and  conditions. 

People  V.  Board  of  Election  Commissioners,  221  Ill.  9  (1906);  Rouse  v. 
Thompson.  228  Ill  522  (1907). 

33  People  V.  Reynolds.  5  Gilman  (Ill.)  1  (1848). 

3"  There  are  two  distinct  but  related  constitutional  questions  involved  in 
legislation  of  this  character. 

1.  Does  the  act  attempt  to  delegate  legislative  power? 

2.  Does  it  permit  a  power  delegated  to  be  exercised  arbitrarily  by  the 

administrative  agency? 

The  primary  election  law  of  1905  authorized  the  county  central  commit¬ 
tee  of  each  political  party  to  determine  whether  candidates  for  county  offices 
should  be  nominated  by  a  majority  or  plurality  vote.  This  was  held  to  be  an  at¬ 
tempted  delegation  of  the  legislative  function.  (People  v.  Board  of  Election  Com¬ 
missioners.  221  Ill.  9.)  The  determination  of  this  matter  is  one  of  the  sub¬ 
stantial  features  of  election  to  office  and  must  be  determined  by  the  General 
Assembly.  On  the  other  hand,  the  provisions  of  a  gas  safety  appliance  act 
exempted  from  the  act.  buildings  receiving  less  than  a  certain  volume  of  gas 
“unless  the  conditions  under  which  the  gas  is  used  are  such  as  to  endanger 
life  or  property  .  .  .  then  in  all  such  cases,  at  the  discretion  of  said  duly 

authorized  officer  or  officers,  all  such  buildings  may  be  required  to  be  equipped 
as  provided  for  herein.”  Enlike  the  provision  in  the  primary  law  above  stated, 
this  is  the  kind  of  a.  duty  which  might  properly  be  performed  by  a  public 
official.  The  objection  is  to  the  method  by  which  the  power  is  conferred.  It 
would  be  unobjectionable  to  permit  such  an  official  to  exercise  his  discretion 
whether  in  a  particular  instance,  conditions  require  safety  appliances  when 
measured  hy  some  fixed  standard.  But  no  fixed  rules  laid  down  by  the  act 
or  required  to  be  formulated,  limit  in  any  way  the  arbitrary  power  here  at¬ 
tempted  to  be  conferred,  and  the  measure  was  held  unconstitutional.  (Sheldon 
V.  Hoyne,  261  Ill.  222.) 

It  mav  be  said.  then,  that  an  act  to  be  valid  must  determine  the  sub¬ 
stantial  features  and  lay  down  a  policy  as  to  those  matters  which  the  Gen¬ 
eral  Assembly  must  determine.  That  having  been  done,  the  application  of 
that  policy  may  be  vested  in  agencies  if  the  act  either  itself  lays  down  regula¬ 
tions  which  govern  equally  its  application  in  all  cases  or  requires  the  agency 
to  adopt  rules  establishing  a  standard.  (See.  also.  People  v.  Kane.  288  Ill.  235: 
Kenyon  v.  Moore.  287  Ill.  2,33:  Board  of  Administration  v.  Miles.  278  Ill.  174.) 

It  is  apparent  that  the  constitutional  question  is  one  of  substance  rather 
than  phraseology.  The  policy  adopted  as  the  legislative  will  may  necessarily 
be  expressed  in  general  and  indefinite  terms.  On  the  other  hand,  an  act  rnay 
be  unconstitutional  which  uses  very  certain  and  explicit  language  in  attempting 
to  confer  a  power  which  must  be  exercised  by  the  General  Assembly  alone. 
(See  Constitution  of  Illinois.  Annotated,  pp.  28,  75.) 


51 


That  is,  a  statute  may  lay  down  general  standards  or  prin¬ 
ciples  which  constitute  the  law  and  delegate  to  an  agency  the 
application  of  these  principles  in  particular  cases. 

Provisions  of  this  character  necessarily  are  couched  in  flexible 
and  general  terms.  Rigid  expressions  do  not  afiford  opportunity  for 
the  exercise  of  discretion  by  those  applying  the  law.  Thus  the 
Public  Utilities  law^®  which  vests  in  a  commission  general  super¬ 
vision  and  ratemaking  power  as  to  public  utilities  provides : 

“All  rates  or  other  charges  made,  demanded  or  received  by  any  public 
utility  or  by  any  two  or  more  public  utilities,  for  any  product  or  commod¬ 
ity  furnished  or  to  be  furnished  or  for  any  service  rendered  or  to  be 
rendered  shall  be  just  and  reasonable  .  .  . 

Every  public  utility  shall  furnish,  provide  and  maintain  such  service, 
instrumentalities,  equipment  and  facilities  as  shall  promote  the  safety, 
health,  comfort  and  convenience  of  its  patrons,  employes,  and  the  public, 
and  as  shall  be  in  all  respects  adequate,  efficient,  just  and  reasonable.” 

It  is  apparent  from  the  instances  cited  that  some  actions  lend 
themselves  to  precise  definition  more  readily  than  others.  As  was 
said  by  the  Ohio  court  in  sustaining  the  general  and  comprehen¬ 
sive  terms  employed  in  the  automobile  speed  law ;  “Absolute  or 
mathematical  certainty  is  not  required  in  the  framing  of  a  statute. 
Reasonable  certainty  of  the  nature  and  cause  of  the  ofifense  is  all 
that  is  required.  Some  oflfenses  admit  of  much  greater  precision 
and  definiteness  than  others,  but  it  is  quite  obvious  that  in  the 
case  at  bar  the  statute  must  be  sufficiently  elastic  and  adapted 
to  meet  all  the  dangerous  situations  presented,  in  order  to  ade¬ 
quately  safeguard  the  traveling  public.”^®  Take  the  distinction  be¬ 
tween  murder  and  manslaughter.  No  amount  of  statutory  defini¬ 
tion  can  draw  the  line  so  clearly  but  that  one  jury  might  view  as 
murder  a  homicide  which  another  jury  would  call  manslaughter. 
The  abstract  idea  only  is  expressed  by  the  definition  in  the  Crimi¬ 
nal  Code.  By  the  individual  jury’s  conception  of  that  abstract  idea 
must  be  measured  each  homicide.  The  statement,  “In  cases  of 
voluntary  manslaughter,  there  must  be  a  serious  and  highly  pro¬ 
voking  injury  inflicted  upon  the  person  killing,  sufficient  to  excite 
an  irresistible  passion  in  a  reasonable  person”  is  most  general  in 
character  and  lays  down  no  hard  and  fast  rule.  On  the  other 
hand,  a  statute  relating  to  intoxicating  liquor  can  easily  draw  a 
sharp  line  between  what  liquor  falls  within  and  what  without  its 
purview.  The  wartime  prohibition  act  used  only  the  words  “no 
beer,  wine,  or  other  intoxicating  malt  or  vinous  liquor”  and  as  a 
result  the  sale  of  beer  containing  2.75  per  cent,  alcohol  became  a 
crime  in  some  localities  but  remained  lawful  in  others.  Had  Fed¬ 
eral  legislation  remained  the  same,  judicial  interpretation  in  time 
would  probably  have  supplied  the  legislative  omission  and  fixed  the 
per  cent,  of  alcohol  which  made  a  liquor  intoxicating.  In  fact, 
the  Volstead  act  which  came  later,  defined  intoxicating  liquor  as 
containing  more  than  one-half  of  one  per  cent.  The  Indiana  stat¬ 
ute  relating  to  hauling  on  roads,  (stated  above)  illustrates  the  kind 
of  definition  which  can  be  made  exact  and  also  the  kind  which 

38  Hurd, 1919,  p.  2336. 

State  V.  Schaeffer,  96  Ohio  St.  215  (1917). 


52 


can  only  be  stated  generally.  The  width  of  “narrow  tires”  and 
“broad  tires”  can  be  fixed  by  inches  and  no  uncertainty  remains. 
The  degree  of  softness  of  a  road  for  hauling  purposes  cannot  be 
so  easily  defined.  It  should,  however,  be  the  aim  of  the  bill-drafter 
to  make  mathematically  precise  that  which  can  be  so  made  and  in 
all  cases  to  lay  down  in  laws  as  definite  a  standard  as  possible 
for  the  guidance  of  courts  and  of  the  public. 

A  statute  is  passed  as  a  whole  and  not  as  disconnected  sections 
and  each  part  must  be  construed  with  reference  to  every  other  part 
or  section.  Consequently  when  a  word  or  phrase,  is  used  more  than 
once  in  a  statute  a  presumption  arises  that  it  bears  the  same  mean¬ 
ing  throughout.  This  presumption  will  govern  the  construction  un¬ 
less  a  contrary  intention  is  evident.  From  this  rule  of  construction 
two  suggestions  for  drafting  can  be  drawn : 

1.  The  same  word  should  not  be  employed  to  convey  differ¬ 

ent  meanings ; 

2.  Different  words  should  not  be  used  to  convey  the  same 

meaning. 

In  the  Illinois  statute  relating  to  divorce  the  word  “marriage” 
occurs  with  two  distinct  meanings.  Properly  employed,  it  should 
signify  the  entering  into  a  legal  marital  relation.  In  the  following 
section  it  also  has  the  meaning  of  a  performance  of  an  illegal 
marriage  ceremony. 

“Sec.  3.  No  divorce  shall,  in  anywise,  affect  the  legitimacy  of  the 
children  of  such  marriage,  except  in  cases  where  the  marriage  is  declared 
void  on  the  grounds  of  a  prior  marriage  .  . 

There  is  no  ambiguity,  however,  nor  need  for  judicial  inter¬ 
pretation  in  this  case  because  the  intent  to  use  “marriage”  in  two 
senses  is  obvious.  But  in  Section  I  of  Article  V  of  the  Cities  and 
Villages  Act  relating  to  the  powers  of  the  City  Council  there  is  a 
somewhat  ambiguous  use  of  the  word  “regulate.” 

Four  clauses  make  use  of  this  word. 

95th  “To  tax,  license  and  regulate  secondhand  and  junk  stores.” 

50th  “To  regulate  the  sale  of  meats  .  .  .  and  to  provide  for  place  and 
manner  of  selling  the  same.” 

81st  “To  direct  the  location  and  regulate  the  management  and  con¬ 
struction  of  packing  houses  ...” 

82nd  “To  direct  the  location  and  regulate  the  use  and  construction  of 
breweries  ...” 

It  was  contended  that  the  word  “regulate”  as  used  in  the  95th 
clause  conferred  the  power  to  prohibit  within  certain  localities  less 
than  the  entire  territory  of  the  city.  But  the  court  held  that  in  the 
last  three  clauses  cited,  in  as  much  as  the  power  to  fix  the  location 
was  conferred  by  additional  language,  the  General  Assembly  in  those 
clauses  did  not  regard  the  power  to  regulate  as  including  the  power 
to  fix  the  location  and  “where  a  word  is  so  used  in  several  clauses 
as  to  have  a  clearly  defined  meaning,  the  same  word,  when  used  in  an¬ 
other  clause,  will  be  given  the  same  meaning,  in  the  absence  of  any¬ 
thing  in  the  context  to  indicate  that  the  legislature  intended  it  to 
have  a  different  meaning.”^^  In  other  words,  the  meaning  of  “regu- 

4«Hurcl,  1919,  p.  1119. 

«  People  V.  Busse,  240  Ill.  33S  (1909). 


53 


late”  is  determined  by  the  context  in  three  clauses,  and  that  same 
meaning  will  be  presumed  to  have  been  intended  when  used  elsewhere. 
Of  course  if  it  was  intended  that  “regulate”  should  have  the  more 
comprehensive  meaning  in  connection  with  junk  stores,  that  intent 
fails  by  reason  of  a  non-observance  of  the  rule  suggested. 

In  an  Appellate  court  decision  which  construes  the  word  “pun¬ 
ishment,”  reference  is  made  to  the  use  of  the  same  word  in  other 
acts  collected  in  the  Criminal  Code.  The  court  says  “where  such  word 
appears  several  times  in  the  same  chapter  of  the  statute  and  the  sense 
in  which  it  is  used  clearly  appears  in  some  sections,  that  may  mater¬ 
ially  aid  in  determining  the  sense  in  which  it  is  used  in  other  section.s 
of  the  same  chapter. Apparently,  then,  not  only  should  a  word 
be  used  uniformly  to  express  the  same  meaning  throughout  a  bill,  but 
care  should  be  observed  to  make  its  use  harmonize  with  other  related 
acts  which  might  be  looked  to  by  the  courts  as  affording  aid  in  con¬ 
struing  it. 


The  use  of  “may”  and  “shall”  in  imposing  duties  and  vesting 
discretion:  The  function  of  the  predicate  in  a  statutory  sentence 
is  to  confer  rights  and  impose  duties.  Two  distinct  questions  are  in¬ 
volved  in  the  predicate.  1.  Does  it  command  .or  merely  permit? 
Statutes  frequently  prescribe  the  performance  of  certain  acts  by  pub¬ 
lic  officials  or  individuals  without  stating  the  consequences  of  non- 
compliance.  2.  If  it  is  a  command,  then  what  effect  will  failure  to 
comply  exactly,  have  on  rights  or  proceedings  based  on  the  statute? 
For  convenience,  a  somewhat  arbitrary  nomenclature  is  adopted  to 
classify  statutes  in  these  regards.  If  a  statute  directs  (or  prohibits) 
the  doing  of  a  certain  thing,  it  is  IMPERATIVE;  if,  however,  it 
imposes  a  discretion  or  grants  permission,  it  is  PERMISSIVE.  If 
exact  performance  as  prescribed  by  a  statute  is  essential  to  the  validity 
of  proceedings  thereunder,  the  statute  is  ^MANDATORY ;  if,  on  the 
other  hand,  performance  may  be  varied  or  omitted  entirely,  the  en¬ 
actment  is  DIRECTORY. 

The  construction  of  a  statute  may  involve  one  or  the  other  of  these 
two  questions  or  both.  It  should  be  remarked  that  the  fact  that  there  are 
two  distinct  questions  is  not  always  recognized  by  courts  and  text 
writers.  Consequently,  the  terms  employed  have  been  used  with 
varying  meanings.  Thus,  the  court  in  construing  a  statute  which 
provided  that  commissioners  shall  return  an  assessment  roll  within 
forty  days  of  their  appointment,  discusses  whether  the  provision  is 
“imperative  or  permissive  or  directory. The  act  is  clear,  in  that  it 
directs  the  manner  of  a  certain  procedure.  No  discretion  is  vested  by 
it  to  perform  or  not  to  perform.  The  question  is  whether  if  per¬ 
formance  is  not  had  as  directed,  what  effect  will  the  variance  have  on 
the  legality  of  the  assessment. 


Gunning-  v.  People,  80  111.  App.  174  (1899). 
Wheeler  v.  City  of  Chicago,  24  Ill.  105  (1800). 


54 


Imperative  and  permissive  provisions:  Nearly  all  the  Illinois 
statutes  in  which  these  points  have  been  considered  by  the  court 
have  used  the  auxilliaries  “may”  or  “shall'’.  Frequently,  however, 
the  courts  in  other  jurisdictions  have  construed  equivalent  phrases 
such  as  “is  authorized  and  empowered,”  or  “is  the  duty,”  etc. 

The  usual  and  grammatical  sense  of  “may”  is  to  grant  per¬ 
mission  and  “shall”  (except  where  expressing  futurity)  implies  a 
command.  “i\Iay”  and  “shall”  when  used  in  statutes  will  be  given 
these  meanings  by  the  court  unless  a  legislative  intent  appears  other¬ 
wise.  Thus  “may”  has  been  held  to  be  permissive  in  a  statute,  one 
section  of  which  provided  for  criminal  prosecution  and  another  that 
“the  fines  hereinbefore  provided  for  may  be  recovered  in  an  action 
of  debt.”^'*  “Any  person  having  filed  a  claim  for  lien,  may  bring  a 
suit  at  once  (before  maturity)  to  enforce  the  same”  was  held  to 
give  an  option  as  to  time  of  filing  suit.'^'^  The  following  provision 
was  held  merely  to  vest  permission  in  the  court ;  “the  court  may,  at 
the  request  of  either  party,  require  the  jury  to  render  a  special  ver¬ 
dict  upon  any  fact  or  facts  at  issue. 

But  the  fact  that  “may”  is  used  is  not  conclusive  that  mere  per¬ 
mission  was  intended  to  be  granted.  “The  language  of  the  section  is 
permissive  in  form,  but  the  form  of  expression  in  that  respect  does 
not  determine  the  question  of  legislative  intent.  That  form  is  fre¬ 
quently  used  where  it  is  plain  that  the  General  Assembly  intended  not 
merely  to  grant  permission  but  to  establish  a  right.  .  . 

No  general  rule  can  be  laid  down  to  determine  the  effect  of  the 
use  of  “may”  in  all  cases.  It  wdll  be  construed  to  further  the  intent 
and  purpose  of  the  enactment  and  this  intent  will  be  gathered  from  a 
consideration  of  the  act  as  a  whole  and,  sometimes,  from  extraneous 
circumstances.  The  words  of  an  English  court  aptly  phrase  the  rule. 
“The  words  ‘it  shall  be  lawful’  confer  a  faculty  or  power,  and  the}' 
do  not  of  themselves  do  more  than  confer  a  faculty  or  power.  But 
there  may  be  something  in  the  nature  of  the  thing  empowered  to  be 
done,  something  in  the  object  for  which  it  is  to  be  done,  something 
in  the  conditions  under  which  it  is  to  be  done,  something  in  the  title 
of  the  person  or  persons  for  whose  benefit  the  power  is  to  be  exer¬ 
cised,  which  may  couple  the  power  with  a  duty,  and  make  it  the 
duty  of  the  person  in  whom  the  power  is  reposed  to  exercise  that 
power  when  called  on  to  do  so.”^®  Perhaps  a  slightly  more  definite 
statement  can  be  made  as  to  the  class  of  provisions  which  are  liable 
to  be  construed  as  imperative.  Generally  the  power  (which  may  be 
construed  to  be  a  duty)  is  vested  in  a  public  official,  and  equities  of 
the  public  or  of  individuals  are  associated  with  the  exercise  of  the 
power.  The  court  has  held  imperative  a  statute  permitting  highway 
commissioners  to  reduce  the  width  of  roads  on  petition,^^  and  to  re¬ 
move  obstructions  from  roads, and  a  statute  which  authorized  an 

^  C.  W.  &  V.  Coal  Co.  V.  People,  114  Ill.  App.  75  (1904). 

Dawson  v.  Black.  148  Ill.  484  (1893). 

““Kane  v.  Footh,  70  Ill.  587  (1873). 

People  V.  Commissioners  of  Highways,  270  Ill.  141  (1915). 

Blackwell’s  case,  1  Vern.  152  (1683). 

People  V.  Commissioners  of  Highways,  270  111.  141  (1915). 

''O  Brokaw  v.  Commissioners  of  Highways,  130  Ill.  482  (1889). 


55 


ordinance  to  require  all  owners  of  lots  along  a  proposed  sidewalk  to 
construct  within  thirty  days/"^^  In  the  last  case  cited,  the  court  says : 
“  ‘May’  means  ‘shall’  or  ‘must’  whenever  the  rights  of  the  public  or  of 
third  persons  depend  upon  the  exercise  of  the  power  to  perform  the 
duty  to  which  it  refers ;  and  such  is  its  meaning  in  all  cases  where 
the  public  duty  is  imposed  upon  public  officers  and  the  public  or  third 
persons  have  a  claim  de  jure  that  the  power  shall  be  exercised. 
Whenever  a  statute  directs  the  doing  of  a  thing  for  the  sake  of  justice 
or  the  public  good,  the  word  ‘may’  will  be  read  ‘shall.’  ” 

But  the  two  elements  found  in  the  cases  cited,  power  vested 
in  an  official  and  equities  of  the  public,  are  not  controlling.  A  stat¬ 
ute  providing  that  “upon  the  filing  of  such  affidavit,  the  court  mav 
continue  such  suit,”  was  held  imperative. Another  which  said 
“the  court  may,  at  the  request  of  either  party,  require  the  jurv  to 
render  a  special  verdict  upon  any  fact  or  facts  at  issue,”  was  held 
merely  to  vest  a  permission  or  discretion  with  the  court. In  each 
case  the  power  is  vested  in  the  same  official  and  its  exercise  afifects 
a  litigant  in  court.  All  that  distinguishes  the  two  statutes  is  the 
nature  of  the  act  to  be  performed.  In  the  one  case  the  court  views 
a  continuance  as  a  matter  of  right  to  parties  litigant  if  thev 
comply  with  the  conditions  laid  down ;  in  the  other  a  special 
verdict  was  deemed  not  to  be  a  matter  of  right. 

Another  type  of  enactment  is  illustrated  by  the  two  following 
provisions :  “such  appeal  may  be  prayed  for  at  any  time  within  20 
days  after  the  rendition  of  such  judgment,  order  or  decree;”  “all 
actions  .  .  .  against  any  county  may  be  commenced  and  prosecuted 
to  final  judgment  and  execution  in  the  circuit  court  of  the  countv 
against  which  the  action  is  brought.”  It  is  quite  clear  that  the 

permission  granted  is  to  pray  an  appeal  or  bring  suit  against  a 

countv.  There  is  no  command  to  exercise  either  of  these  rights. 
“May”  is  used  in  its  grammatical  sense  in  that  respect.  But  if  it  is 
desired  to  exercise  the  power  granted,  then  it  must  be  exercised  in 
the  manner  prescribed.  In  other  words,  the  statute  i§  purelv  per¬ 
missive,  with  certain  limitations  on  the  permission  granted.  Al¬ 
though  these  are  not  in  fact  cases  of  construing  “may”  as  “shall” 
the  court  has  so  discussed  them.^^ 

“Shall”  like  “may”  in  statutory  language  is  ordinarily 
given  its  grammatical  meaning.  In  a  few  cases,  however, 

it  has  been  construed  to  be  permissive  instead  of  imperative. 
Thus,  the  citv  court  act  of  1901  provided  that  “appeals 

shall  be  taken  in  the  first  instance  from  the  judgments  of  justices 
of  the  peace  or  police  magistrates  in  the  city  to  the  city  court.” 
The  act  also  contained  a  blanket  repeal  section.  Section  I  of  the 
act  provided  for  concurrent  jurisdiction  for  city  courts  with  cir¬ 
cuit  courts  in  appeals  from  justices  of  the  peace  in  the  city.  To 
hold  that  “shall”  was  mandatory  and  excluded  appeals  from  justices 

Pierson  v.  People.  204  Ill.  4.56  (1903). 

Ohicapro  Pub.  Stock  Px.  v.  McClaup’hry,  148  Ill.  372  (189  4). 

53  Kane  v.  Footh.  70  Ill.  587  (1873). 

5^  .Tames  v.  Pexter.  112  Ill.  489  (1884);  Schuyler  County  v.  Mercer  County. 
4  Gilman  (Ill.)  20  (1847). 


56 


of  the  peace  in  cities  to  the  county  courts  and  circuit  courts,  would, 
in  ef¥ect,  repeal  provisions  regarding  appeals  in  the  County  Court 
Act  and  the  Justice  of  the  Peace  and  Constable  Act  and  conflict 
with  section  I  of  the  statute  under  consideration.  The  situation 
permitted  only  one  construction — that  “shall”  was  permissive  and 
should  be  read  “may.”®^  Objection  was  made  to  a  portion  of  a 
drainage  act  on  the  ground  that  it  required  the  jury  to  return  a 
verdict  which  “shall  produce  the  total  sum  of  the  estimated  cost 
of  the  proposed  work.”  The  validity  of  the  section  demanded  that 
“shall”  be  construed  to  be  not  imperative,  but  permissive.  The  act 
is  quite  clear  that  the  jur3"’s  return  is  to  be  based  on  benefits  and 
that  there  was  no  intention  to  require  an  arbitrary  finding  based 
on  other  facts. 

Another  statute  had  a  provision,  imperative  in  form,  for  the 
removal  of  certain  dams  in  the  Illinois  riA^er.  From  a  consider¬ 
ation  of  the  purpose  of  the  act  and  the  history  of  canal  construc¬ 
tion  by  the  state,  the  court  arriA^es  at  the  conclusion  that  the  legis¬ 
lature  neA^er  intended  to  command  the  remoA^al  of  the  dams  but 
merely  to  authorize  it  if  certain  conditions  rendered  them  useless. 
“Where  the  rights  of  the  public  or  of  third  persons  are  inA^oh^ed, 
AA^ords  in  the  statute  importing  permission  or  authority  may  be 
read  as  mandatory  and  AA’ords  imposing  a  command  may  be  read 
as  permissiye.^ 

Apparently  there  is  no  rule  of  construction  suggested  by  these 
cases  other  than  that  a  court  Avill  disregard  the  form  of  the  legal 
predicate  Avhen  a  contrarA"  intent  is  eAudent  from  a  consideration 
of  the  AATole  act  or  AAdiere  it  aa^ouM  lead  to  an  absurdity  or  AA^ork 
an  injustice.  In  the  case  of  the  statute  regarding  appeals  from 
justices  of  the  peace,  the  construction  adopted  for  the  legal  predi¬ 
cate  AA'as  required  to  ,bring  the  proAUsion  into  harmonA^  not  only 
.Avith  other  acts  but  AAuth-  other  proAusions  of  the  same  act.  A 
dififerent  decision  as  to  the  drainage  statute  AA’ould  mean  a  jur^^ 
Axrdict  dictated  b^^-  principles  not  in  accord  AAuth  the  constitution 
and  our  fundamental  ideas  of  jury  trial.  In  the  third  case  cited, 
concerning  the  Illinois  riA^er  dams,  imperative  language  is  changed 
to  permissiA^e  because  it  is  not  to  be  thought  that  the  General 
Assembl3^  intended  to  destro3^  state  property  AATich  had  cost  a  mil¬ 
lion  dollars  unless  it  had  become  useless. 

To  insure  that  a  measure  aaoII  be  giA^en  the  desired  construc¬ 
tion  in  this  regard,  it  is  necessary  to  make  that  intent  very  clear. 
It  is  important  to  obserAX  these  precautions : 

1.  Emplo3^  “shall”  and  “may”  in  their  correct  sense.  NeA^er 
use  “shall”  to  grant  permission  or  “ma3"”  to  impose  a  duty. 

2.  If  it  is  desired  to  authorize  but  not  to  command  and  the 
proAusion  is  of  the  kind  AAdiere  a  court  might  think  that  the  rights 
of  somebody  or  other  are  inAmh^ed  and  demand  that  the  enactment 
be  mandatory,  the  Till-drafter  must  reenforce  his  intent  Iia^  making 
clear  be3’^ond  an3^  doubt  b3^  express  AA^ords  that  the  intent  is  to  con- 

Bover  V.  Onion,  108  Til.  App.  612  (1902). 

Spring  Creek  Di.st.  v.  E.  .1.  &  E.  Hy.  Co.,  249  Til.  260  (1911). 

Canal  Commissioners  v.  Sanitary  Dist.,  184  Til.  597  (1900). 


57 


fer  a  discretion  or  grant  permission.  In  the  expression,  “the  direc¬ 
tor  may,  in  his  discretion”  the  permissive  “may”  is  strengthened 
by  the  phrase  “in  his  discretion.”  Or  a  separate  sentence  may  be 
used  to  make  the  intent  very  clear.  “The  exercise  of  this  power  shall 
be  wholly  within  the  discretion  of  the  director.” 

The  cases  reading  “shall”  as  “may”  in  fact  are  without  value 
to  a  bill-drafter,  since  they  represent  merely  a  misuse  of  “shall” 
which  is  corrected  by  judicial  construction.  It  should  not  be  neces¬ 
sary  for  the  court  to  rewrite  legislation  to  correct  faulty  English. 


Mandatory  and  directory  provisions:  Mandatory  and  direc¬ 
tory  provisions  are  both  commands  from  the  law-making  body.  In 
both,  a  duty  is  imposed  or  the  commission  of  an  act  is  ordered. 
The  courts  have  sometimes  discussed  provisions  deemed  to  be 
directory  as  though  they  were  mere  grants  of  authority,^®  whereas 
they  are  in  fact  commands  which  by  judicial  construction  may  be 
varied  or  even  disregarded.  A  single  instance  will  serve  to  illus¬ 
trate.  A  statute  provides :  “One  engineer  shall  be  annually  ap¬ 
pointed  by  the  mayor  in  the  month  of  April  subject  to  confirmation 
by  the  alderman  for  a  term  ...” 

It  is  quite  clear  that  the  legislative  mandate  is  that  the  ap¬ 
pointment  be  made  by  the  persons  named  during  the  stated  period. 
But  “the  result  of  holding  the  statute  directory  is  that  the  power  of 
appointment  given  to  the  mayor  is  to  be  exercised  by  him  as  and 
when  provided  by  the  statute  but  that  if  for  any  reason  an  appoint¬ 
ment  is  not  made  by  him  during  the  month  of  April  as  directed 
but  at  some  later  time,  it  nevertheless  will  be  a  valid  appointment.”®® 
This  is  simply  a  recognition  of  the  fact  that  statutory  regu¬ 
lation  must  frequently  lay  down  fixed  rules  even  as  to  trivial  and 
immaterial  details.  Consequently,  the  courts  have  said  that  as  to 
such  matters,  some  latitude  will  be  permitted,  not  because  the 
legislature  did  not  intend  its  directions  to  be  followed  but  rather 
because  the  greater  good  will  result  from  relaxing  somewhat  the 
rigidity  of  statutory  regulations.  The  court  in  an  early'  decision 
in  Illinois  said :  “B}'^  a  directory  statute  is  not  to  be  understood 

that  no  duty  is  imposed  to  do  the  act  at  the  time  specified,  in  the 
absence  of  a  satisfactor}^  reason  for  not  -then  doing  it,  but  simply 
that  the  act  is  valid  if  done  afterwards.”®® 

The  question  whether  a  provision  orders  or  permits  some  ac¬ 
tion  involves  a  consideration  of  legislative  intent ;  whether  it  is 
mandatory  or  director}^  is  generally  a  question  of  policy  to  be 
applied  by  the  court.  Of  course,  the  language  employed  may  give 
an  indication  as  to  the  legislative  view  of  the  importance  of  a 
provision  and  as  such  will  be  a  consideration  for  the  judicial  con¬ 
struction. 

No  universal  rule  can  be  stated  to  distinguish  directory  pro¬ 
visions  from  mandatory.  It  is  impossible  to  group  all  the  various 

Wheeler  v.  City  of  Chicago,  24  Ill.  105  (1860). 

Rutter  V.  White,  90  N.  E.  401  (Mass.  1910). 

Webster  v.  French,  12  Ill.  301  (i850). 


58 


provisions  on  different  subjects  which  have  been  held  to  be  either 
the  one  or  the  other.  In  each  case  the  court  must  look  to  the  sub¬ 
ject  matter,  consider  the  importance  of  the  provision,  its  relation  to 
the  general  object  to  be  secured  by  the  act,  and  the  consequence  to 
the  rights  of  the  public  or  individuals  that  may  result  from  one 
meaning  rather  than  another. 

This  is  not  ordinarily  a  matter  of  importance  to  the  bill-draft¬ 
er.  That  a  court  may  permit  some  variation  in  the  minor  regula¬ 
tions  he  has  laid  down,  is  not  his  concern.  Nor  is  it  desirable  gen- 
erall}^  that  the  minor  matters  and  immaterial  details  of  statutory 
enactments  should  be  so  firmly  fixed  as  to  be  be^^ond  judicial  re¬ 
laxation.  Occasionally  if  it  is  desired  to  secure  exact  compliance 
with  a  provision,  suitable  language  can  be  employed  to  effect  that 
result. 

Mandatory  provisions  not  only  contain  a  command  but  also 
include  a  prohibition  against  varying  the  terms  of  the  command. 
If  affirmative  language  is  used  to  express  the  provision,  the  prohi¬ 
bition  exists  only  by  implication.  If  that  ])rohibition  is  expressed 
by  the  use  of  negative  language,  the  legislative  intent  that  the 
provision  be  mandatory  is  apparent  beyond  any  doubt.  The  pro¬ 
visions  “the  commissioners  shall  return  the  assessment  roll  within 
forty  days  of  their  appointment,”  is  affirmative  and  as  to  the  time 
of  the  return  was  held  director}'.  If  the  words,  “and  not  there¬ 
after,”  had  been  added,  it  would  have  been  difficult  for  a  court  to 
hold  that  a  valid  return  could  be  made  after  the  forty-day  per¬ 
iod.  In  passing  on  this  provision,  the  court  said:  “There  are  no 
negative  words  used,  declaring  that  the  functions  of  the  commis¬ 
sioners  shall  cease  after  the  expiration  of  the  forty  days,  or  that 
they  shall  not  make  their  return  after  that  time.”*^^ 

It  has  been  pointed  out  that  the  distinction  between  mandatory 
and  directory  enactments  arises  from  the  difference  in  the  results 
of  non-compliance.  Therefore,  if  the  consequence  or  penalty  of 
non-compliance  is  prescribed,  the  question  as  to  whether  the  act 
is  mandatory  or  directory  cannot  arise.  Thus,  in  the  statute  cited 
above,  if  a  statement  follows  to  the  effect  that  “if  no  return  is 
made  within  forty  days,  the  assessment  shall  be  void,”  or  “if  no 
return  is  made  within  forty  days,  the  mayor  shall  appoint  other 
commissioners,”  it  becomes  quite  clear  that  the  return  within 
forty  days  is  made  essential  and  cannot  be  waived. 


Definitions,  the  Construction  Statute  and  some  miscellaneous 
matters:  Some  mention  has  already  been  made  of  the  utility  of 
definitions  in  statutes.  Frequently  it  is  desirable  either  to  restrict  or 
qualify  the  general  meaning  of  a  word  or.  to  extend  that  meaning  so  as 
to  make  it  more  inclusive.  Or  a  word  may  have  a  number  of  different 
meanings,  and  it  may  be  desired  to  have  it  understood  in  only  one 
sense.-  Thus,  “bedding”  may  be  used  in  a  geological  sense ;  it  is  a  term 
used  in  the  construction  of  buildings ;  it  also  means  stable-litter  for 


Wheeler  v.  City  of  Chicago.  24  Ill.  105  (1860). 


59 


animals  to  sleep  upon.  So  when  the  word  “bedding”  is  used  in  a 
statute  relating  to  furnishings  for  beds,  it  is  desirable  that  it  be  de¬ 
fined  to  exclude  other  meanings.®^ 

Alany  words  in  common  use  are  not  precise  and  definite  in  their 
meanings.  The  words  “knowledge”  and  “notice”,  for  example,  con¬ 
vey  only  a  general  idea  without  exact  limits,  and  as  in  the  Uniform 
Partnership  Act,*^^  definitions  may  be  used  to  give  to  these  words  the 
precise  shade  of  meaning  desired.  Frequently,  however,  definitions 
are  used  in  a  somewhat  more  arbitrary  manner  for  the  purpose  of 
including  or  excluding  matter  from  the  general  meaning  of  a  word. 
For  instance,  “bedding”  properly  includes  sheets,  spreads  and  ])illow 
cases,  but  the  act,  above  mentioned,  which  regulates  the  manufacture 
and  sale  of  bedding,  is  intended  to  apply  only  to  bedding  which  is 
stuffed  with  a  filling,  such  as  mattresses,  pillows,  etc.  By  definition, 
therefore,  “bedding”  is  made  to  mean  only  that  particular  kind  of 
bedding.  On  the  other  hand,  “highway”  in  common  parlance  means 
roads  or  streets.  In  the  Search  and  Seizure  Act®^  its  usual  meaning 
is  expanded  to  include  “water  course,  lake,  aerial  way,  railroad,  road, 
alley,  path  or  way  which  is  open  to  the  use  of  the  public.” 

When  Repeated  reference  must  be  made  to  a  number  of  things 
or  persons,  it  is  sometimes  possible,  after  an  enumeration  has  once 
been  made,  to  make  use  of  a  generic  term  in  place  of  repeating  the 
list  each  time.  Sometimes  a  word  can  be  arbitrarily  employed  as  a 
substitute  for  a  number  of  specified  terms  or  a  variety  of  cases  or 
situations.  “Noxious  weeds”  is  used  in  this  manner  in  an  act  rela-ting 
to  farm  seeds.®®  Care  should  be  observed  that  the  relationship  be¬ 
tween  the  term  and  the  class  it  represents  is  definitely  established. 
This  can  be  done  by  the  use  of  a  definition  of  the  word  or  a  statement 
of  the  way  it  is  employed. 

A  number  of  words  in  frequent  use  in  statutes  are  defined  in  an 
act  relating  to  the  construction  of  statutes.®®  The  meaning  there  given 
these  words  is  to  be  applied  to  them  unless  “inconsistent  with  the 
manifest  intent  of  the  Legislature  or  repugnant  to  the  context.”  The 
Construction  Statute  contains  also  rules  of  construction  to  be  ob¬ 
served  in  the  construction  of  statutes  now  in  force  or  enacted  in  the 
future,  unless  a  contrary  intent  is  evident.  Such  an  act  is  valuable 
since  it  saves  the  repetition  of  definitions  and  rules  of  construction 
which  otherwise  would  be  incorporated  in  many  statutes.  The  Con¬ 
struction  Statute  in  Illinois  is  not  as  comprehensive  as  it  might  be 
made.  Such  an  act  to  be  really  servicable,  must  be  complete  and 
contain  all  definitions  of  a  general  character  in  legislative  enactments 
and  also  the  most  general  rules  of  construction. 

Of  course,  the  bill-drafter  should  be  familiar  with  the  provisions 
of  the  Construction  Statute  and  avoid  the  duplication,  of  its  contents  in 
individual  acts.  This  would  seem  so  obvious  as  not  to  need  mention 
but  some  of  the  provisions  of  the  Construction  Statute  are  continually 

«2Hurd,  1919,  p.  1107. 

'■'^Hurd,  1919,  p.  2218. 

•^Hurd,  1919,  p.  1248. 

«'"Hurd,  1919,  p.  56. 

Hurd,  1919,  p,  2929, 


60 


appearing  in  acts  enacted  by  the  General  Assembly.  The  act  regulat¬ 
ing  the  manufacture  and  sale  of  bedding,®^  enacted  in  1919  contains 
the  following  provision : 

“The  word  ‘person’  as  used  in  this  act  shall  be  construed  to  import 
the  plural  and  the  singular  as  the  case  demands  and  shall  include  corpo¬ 
rations,  companies,  societies  and  associations.” 

This  provision  is  contained  in  language  practically  the  same  in 
the  third  and  fifth  clauses  of  Section  1  of  the  Construction  Statute. 
The  General  Corporation  Act,^®  a  carefully  drafted  measure,  provides 
in  Section  156  that : 

“The  provisions  of  this  act,  so  far  as  they  are  the  same  as  those  exist¬ 
ing  statutes,  shall  be  construed  as  a  continuation  thereof,  and  not  as  a  new 
enactment  ...” 

Section  2  of  the  Construction  Statute  is : 

“The  provisions  of  any  statute,  so  far  as  they  are  the  same  as  those  of 
any  prior  statute,  shall  be  construed  as  a  continuation  of  such  prior  pro¬ 
visions,  and  not  as  a  new  enactment.” 

A  provision  similar  to  Section  4  of  the  Construction  Statute, 
saving  all  rights  and  claims  accrued  and  penalties  incurred  under  a 
repealed  act,  appears  frequently  in  amendatory  acts  and  revisions. 
To  pad  statutes  with  such  superfluous  provisions  is  a  serious  mistake. 
If  the  Construction  Statute  is  to  serve  any  useful  purpose,  the  rules 
laid  down  there  should  not  be  incorporated  in  each  individual  measure. 

While  the  statutes  quoted  offend  in  the  matter  of  duplicating 
the  rules  laid  down  in  the  Construction  Statute,  instances  are  not  in¬ 
frequent  in  which  statutes  wholly  disregard  these  rules  and  use  forms 
which  are  made  unnecessary.  Even  if  it  were  not  so  provided  in  the 
Construction  Statute,  it  is  a  familiar  rule  of  construction  that  words 
importing  the  singular  number  may  be  applied  to  several  persons 
or  things  and  words  importing  the  plural  number  may  include  the 
singular.'^®  There  is  no  excuse  for  the  awkward  combination  of  the 
singular  and  plural  forms  of  nouns  and  pronouns  such  as  is  found 
in  Section  9b  of  Division  I  of  the  Criminal  Code  ‘‘any  person  or 
persons  who  shall,”  .  .  .  “marked  with  his,  her  or  their  name  or 
names,”  etc. 

The  Construction  Statute  also  provides  that  “words  importing 
the  masculine  gender  may  be  applied  to  females.”  The  masculine 
pronouns  “he”  and  “his”  should  be  used  instead  of  the  double  form 
“he  or  she,”  “his  or  her.”  Possibly  an  exception  should  be  noted  to 
this  rule  that  the  masculine  form  comprehends  the  feminine.  Where 
a  bill  treats  of  matters  which  have  been  customarily  connected  with 
males  and  it  is  desired  to  include  both  sexes,  it  is  perhaps  safer  to 
add  a  statement  expressly  providing  that  the  masculine  form  is  to 
include  the  feminine.  A  Wisconsin  statute  regulating  admission  to 
practice  law  was  held  to  exclude  women  because  of  the  use  of  the 

e^iird,  1919,  p.  1107. 

csHiird,  1919,  p.  722. 

Oeneral  Corporation  Act,  Section  156,  Hurd,  1919,  p.  748. 

Perkin.s  v.  Bertrand,  192  Ill.  58  (1901);  Arnold  &  Murdock  Co.  v.  Industrial 
Board.  277  Ill.  295  (1917). 

Hurd,  1919,  p.  972. 


61 


masculine  pronoun  Of  course,  if  a  statute  applies  only  to 

females,  it  should  use  feminine  pronouns. 

The  act  regulating  the  practice  of  nursing^^  was  designed  to  apply 
to  both  sexes.  As  a  matter  of  actual  fact,  there  are  practically  no 
registered  male  nurses.  It  was  felt  by  those  instrumental  in  the  pas¬ 
sage  of  the  act  that  the  masculine  pronouns,  in  view  of  the  fact  that 
practically  all  nurses  were  women,  were  undesirable.  The  feminine 
forms  could  not  be  used  because  they  were  not  construed  to  include 
both  sexes.  Consequently,  a  combination  of  both  genders  seemed  to 
be  the  most  satisfactory  mode  of  expression.  This  is  an  exceptional 
instance,  and  even  here  the  correct  method  probably  would  have  been 
to  employ  the  masculine  forms. 

The  Construction  Act,  Section  1,  Fifth  Clause,  says: 

“The  word  ‘person’  as  well  as  all  words  referring  to  or  importing 
persons,  may  extend  and  be  applied  to  bodies  politic  and  corporate  as 

well  as  individuals.” 

0 

This  makes  unnecessary  the  use  of  the  awkward  series  “person, 
firm,  association  or  corporation,”  which  is  so  frequently  found  in 
legislation.^^ 

Brief  mention  may  be  made  of  a  number  of  minor  matters  of 
phraseology  which  tend  to  simplify  and  make  legislative  language  more 
natural. 

1.  The  connecting  word  “that”  immediately  following  the  enact¬ 
ing  clause  in  the  first  section  of  a  bill  is  unnecessary  and  should  be 
omitted.  If  the  enacting  clause  is  made  to  precede  Section  1  instead 
of  being  a  part  of  it,  the  uselessness  of  an  introductory  “that”  be¬ 
comes  more  apparent,  but  even  if  the  enacting  clause  is  kept  in  the 
first  section,  the  “that”  should  be  discarded.  In  a  few  cases  in  Illi¬ 
nois,  sections  other  than  the  first  section  commence  with  “that.”‘“ 

2.  Statutes  can  be  simplified  greatly  without  weakening  theii 
effect,  by  omitting  the  grouping  of  synonyms  and  indirect  expressions 
which  tend  to  make  sentences  rambling  and  disconnected.  As  was 
said  by  one  text-writer:  “A  law  is  usually  stronger  if  it  has  few  words, 
chosen  with  care  as  to  their  meaning.”^*’’  Too  often  it  is  to  be  feared 
authors  of  bills  think  that  the  multiplication  of  synonyms  and  phrases 
tend  to  give  a  legal  smack  which  adds  to  the  impressiveness.  The 
continued  repetition  of  these  useless  combinations  of  nouns,  verbs, 
adjectives  and  conjunctions  finally  becomes  habitual.  The  word  “will” 
includes  everything  that  is  meant  by  “testament,”  but  most  lawyers 
join  the  two  in  writing  a  “last  will  and  testament.”  A  legislature 
cannot  authorize  an  action  without  giving  power,  but  how  many 
laws  “authorize  and  empower”  and  “order  and  direct.”  The  statute 
books  abound  with  such  redundancies  as  “each  and  every,”  “any  and 
all,”  “parts  and  portions,”  “be  and  the  same  are,”  “for  and  during,” 
“period  and  term,”  “do  and  perform,”  “acts  and  things,”  “full  and 

^2  In  re  Goodell,  39  Wis.  232  (1875). 

^^Hurcl,  1919,  p.  2048. 

Commercial  Insurance  Co.  v.  Mehlman,  48  Ill.  313  (1868);  Ochs  v.  People. 
124  Ill.  399  (1888). 

Hard  road  act.  Hurd,  1919,  p.  2642;  Chicago  Municipal  Court  Act,  Hurd, 
1919,  p.  925. 

Jones,  Statute  Law  Making  p.  123, 


62 


complete,”  “by  and  with”  and  “shall  have  power  and  it  shall  be  his 
duty  to.”  A  law  does  not  become  any  stronger  because  it  says  that  it 
“shall  be  in  full  force  and  effect,”  rather  than  simply  that  it  “shall 
be  in  force.”  These  and  many  other  similar  pairs  and  phrases  can  be 
replaced  by  one  word  or  a  more  simple  term  and  they  should  not  be 
tolerated  in  careful  legislation. 

3.  There  are  some  words  like  “hereby,”  “said,”  “aforesaid,” 
“such,”  “any,”  whatsoever”  and  “wheresoever”  which  appear  fre¬ 
quently  in  legal  expression.  Generally  they  are  unnecessary  and  do 
not  add  anything  by  way  of  definiteness.  It  is  just  as  effective 
to  say  “whoever,  having  a  former  husband  or  wife  living,  marries 
another  person,  is  guilty  of  bigamy,”  as  to  say  “whoever,  etc.,  shall 
be  deemed  guilty  of  bigamy.”  “Shall  be  construed  to  mean”  is  no 
more  convincing  than  the  word  “means.” 

Commands  and  permissions  are  frequently  stated  in  an  indirect 
manner :  “it  shall  be  the  duty,”  “is  authorized,”  etc.,  for  which  may 
be  substituted  such  words  as  “shall,”  “must”  or  “may.” 


4.  Ordinarily,  where  the  creation  of  a  simple  crime  is  not  a 
subordinate  part  of  a  broader  act,  there  is  no  necessity  for  reciting 
that  the  thing  prohibited  is  unlawful  and  that  a  person  violating  that 
prohibition  is  subject  to  a  penalty.  It  is  sufficient  to  provide  that  a 
person  committing  such  an  act  is  guilty  of  an  offense  and  fix  the  pen¬ 
alty. 


Thus,  an  act  forbidding  the  portrayal  of  hangings,  lynchings 
and  burnings  of  human  beings,  reads : 

“It  shall  be  unlawful  for  any  person,  firm  or  corporation  to  manufac¬ 
ture,  sell  or  offer  for  sale,  or  advertise  or  present  or  exhibit  in  any  public 
place  in  the  State,  any  publication  or  representation  by  lithograph,  mov¬ 
ing  picture,  play,  drama  or  sketch  representing  or  purporting  to  represent 
any  hanging,  lynching  or  burning  of  any  human  being.  Any  person,  firm 
or  corporation  violating  any  of  the  provisions  of  this  section  shall  be  guilty 
of  a  misdemeanor,  and  upon  conviction  thereof  shall  be  punished  by  a  fine 
of  not  less  than  fifty  dollars  nor  more  than  two  hundred  dollars.”  ” 

This  can  be  more  simply  stated  by  providing  that  “whoever  manu¬ 
factures,  ...  is  guilty  of  a  misdemeanor  and  shall  be  punished 
.  .  .”  The  Criminal  Code  comprises  a  miscellaneous  collection  of 
offenses  and  criminal  provisions  which  are  being  changed  and  added 
to  continuall}^  and  anything  which  tends  to  harmonize  and  unify  its 
pages  is  desirable. 

When  the  creation  of  offenses  is  incidental  to  the  main  purposes 
of  a  bill,  it  may  be  convenient  to  prohibit  specific  acts  or  require  that 
certain  regulations  be  complied  with,  and  group  the  penalty  provisions 
in  a  later  section.  Section  43  of  the  Motor  Vehicle  Act  is  an  example 
of  the  grouping  of  penalty  provision  in  one  section. 

“Any  person  wilfully  violating  the  provisions  of  this  Act  shall,  except 
as  otherwise  provided  herein,  upon  conviction,  be  fined  in  a  sum  not  to 
exceed  the  amount  hereinafter  set  forth. 

For  the  violation  of  sections  8,  14,  16,  17,  18,'  19,  20,  21,  27,  28  and  40,  or 
any  of  them,  twenty-five  dollars. 

For  a  violation  of  section  22,  two  hundred  dollars. 


”  Hurd,  1919,  p.  1041, 


63 


For  the  violation  of  any  section  or  provision  for  which  no  specific 
penalty  is  provided,  one  hundred  dollars.” 

Where  a  prohibition  is  expressed  apart  from  the  penalty  pro¬ 
vision,  it  is  generally  better  to  say  “no  [lerson  shall”  rather  than  “it 
shall  be  (is)  unlawful  to.” 

There  is  a  general  penalty  provision  for  misdemeanors  in  the 
Criminal  Code  which  reads  as  follows : 

“Where  the  performance  of  any  act  is  prohibited  by  any  statute,  and 
no  penalty  for  the  violation  of  such  statute  is  imposed,  the  doing  of  such 
act  is  a  misdemeanor,  and  may  be  punished  by  fine  not  exceeding  $100, 
or  imprisonment  in  the  county  jail  not  exceeding  six  months,  or  both,  in 
the  discretion  of  the  court.”’® 

A  misdemeanor  for  which  no  penalty  is  specifically  provided  may 
be  punished  under  this  provision,  ddiis  plan  is  followed  in  the  Crimi¬ 
nal  Code  of  New  York.  In  this  state,  however,  it  has  been  customary 
to  attach  the  penalty  clause  to  each  offense,  and  it  might  not  be  wise 
to  omit  the  penalty  provision  in  statutes  creating  misdemeanors.  But 
the  New  York  method  should  be  considered  when’ a  revision  of  the 
Criminal  Code  is  made,  because  the  use  of  a  general  penalty  provision 
undoubtedly  tends  to  standardize  penalties. 

5.  There  is  some  tendency  to  avoid  pronouns  in  statutory 
language.  This  is  commendable  when  a  lack  of  clearness  might 
otherwise  result,  but  there  is  no  objection  to  their  use  so  long 
as  their  position  indicates  definitely  their  antecedents. 

6.  The  conjunctions  “and”  and  “or”  arc  used  inaccurately 

in  popular  language  frequently,  and  also,  in  a  less  degree,  in 
statutory  expression.  The  courts  recognizing  this  inaccuracy,  have 
been  obliged  frequently  to  adopt  a  loose  construction  in  order  to 
effectuate  what  appeared  to  be  the  legislative  intent.  “While  they 
are  not  treated  as  interchangeable,  and  should  be  followed  when 
their  accurate  reading  does  not  render  the  sense  dubious,  their 
strict  meaning  is  more  readily  departed  from  than  that  of  other 
words,  and  one  read  in  place  of  the  other  in  deference  to  the  mean¬ 
ing  of  the  context.”®*’  The  court,  though,  in  another  case,  refused 

to  read  “and”  as  “or”  when  that  construction  was  urged.  “It  is 

no  doubt  true,  that  where  the  sense  and  purpose  of  a  statute  de¬ 
mand  it,  the  conjunction  “and”  may  be  construed  as  though  it 
were  written  “or but  in  the  absence  of  some  such  necessity,  the 
words  of  a  statute  are  not  to  be  so  changed.”®^ 

As  in  the  case  of  “may”  and  “shall,”  a  readiness  on  the  part 

of  the  courts  to  depart  from  the  general  meaning  of  words,  is  a 

source  of  danger  to  the  bill-drafter,  since  he,  even  when  he  has 
used  such  terms  accurately,  must  guard  against  the  possibility 
of  a  different  construction  than  that  intended.  In  the  first  place, 
there  should  be  no  careless  use  of  conjunctions.  As  was  men¬ 
tioned  in  a  discussion  of  provisos,  “provided”  is  sometimes  inaccur¬ 
ately  used  to  join  a  simple  independent  provision.  If  there  remains 

^»Hurd,  1919,  p.  2634. 

•»Hurcl,  1919,  p.  1057. 

Sutherland,  Statutory  Construction,  Sec.  252;  People  v.  VanCleave,  187 
Ill.  125  (1900);  Boyles  v.  McMurphy,  55  Ill.  236  (1870). 

81  People  v.  Lee.  112  Ill.  113  (1884). 


64 


a  possibility  of  a  conflict  of  ideas  between  the  conjunctions  used 
and  the  context,  the  conjunction  may  be  strengthened  by  other 
words  to  avoid  the  possibility  of  the  context  overriding  the  con¬ 
junction.  Thus  “either  .  .  .  or”  may  be  employed  if  the  idea 
is  disjunctive,  and  if  conjunctive  “both  .  .  .  and”  or  “and  also.” 

7.  The  Illinois  statute  book  abounds  with  sample  forms  for 
bonds,  ballots,  reports,  affidavits,  etc.,  given  for  the  most  part  for 
the  guidance  of  governmental  officials.  In  some  cases,  this  is  an 
unnecessary  detail  which  may  be  left  to  the  discretion  of  the  office 
administering  the  law.  A  bounty  act  of  1877  provides : 

“.  .  .  whereupon  the  clerk  of  said  board,  shall  administer  to  said 
person,  the  following  oath  or  affirmation,  to-wit: 

You  do  solemnly  swear  (or  affirm  as  the  case  may  be),  that  the  scalp 
or  scalps  here  produced  by  you  was  taken  from  a  wolf  or  wolves  killed  and 
first  captured  by  yourself  within  the  limits  of  this  county  and  within  the 
sixty  days  last  past. 

This  could  have  been  simplified  greatly  (as  was  done  with  later 
bounty  acts)  by  merely  requiring  an  affidavit  and  stating  its  sub¬ 
stance. 

Section  5  of  an  act  providing  for  visitation  of  children  placed 
in  family  homes  contains  a  lengthy  form  of  report  to  be  made  to 
the  Board  of  Public  Charities  by  its  visitors.®^  The  Search  and 
Seizure  Law®^  which  in  a  great  many  respects  illustrates  the  things 
a  bill  drafter  should  avoid,  contains  six  forms.  It  has  forms  for 
carrier’s  records,  statement  by  consignees  to  carrier,  application  for 
purchase  from  druggist,  complaint  for  search  warrant,  search  war¬ 
rant  and  permit  issued  by  the  Attorney  General.  Generally,  when 
an  action  or  proceeding  is  entrusted  to  one  officer  or  department 
of  the  state,  it  is  sufficient  to  give  that  officer  or  department  general 
instructions  as  to  forms.  When,  however,  the  duty  is  imposed  up¬ 
on  a  number  of  officials,  throughout  the  state,  if  uniformity  is  de¬ 
sired,  it  is  necessary  to  set  out  in  detail  the  forms  to  be  used. 

8.  Occasionally  in  statutes  the  enumeration  of  several  per¬ 
sons  or  things  is  followed  by  a  dependent  clause.  Section  4  of  the 
Workmen’s  Compensation  Act  of  1911^^  has  the  words,  “If  the 
employe  leaves  any  widow,  child  or  children,  or  parents  or  other 
lineal  heirs  to  whose  support  he  had  contributed  within  five  years 
previous  to  the  time  of  his  death  .  .  .”  Such  an  expression  is 
capable  of  two  interpretations ; — the  dependent  clause  may  be  held 
to  qualify  each  member  of  the  list  preceding  or  it  may  be  limited 
to  the  last  one.  In  the  instance  cited  the  Appellate  court  adopted 
the  first  construction  and  held  that  the  clause  modified  the  word 
“parents.”®®  By  care  in  the  matter  of  phrasing,  an  ambiguity  of 
this  kind  can  be  avoided. 

Hurd,  1919,  p.  161. 

8»Hurd,  1919,  p.  279. 

8^  Hurd,  1919,  p.  1248. 

8^  Laws,  1911,  p.  315. 

8®  Erickson  v.  American  W^ell  Works,  196  Ill.  App.  346  (1915). 


65 


PUNCTUATION. 


The  matter  of  punctuation  in  statutes  formerly  was  unimport¬ 
ant  since  the  early  rule  of  construction  was  that  statutes  should  be 
read  without  breaks  or  stops  and  that  whether  words  belong'  to  any 
particular  branch  of  a  sentence  is  to  be  determined  from  the  con¬ 
sideration  of  the  entire  act.^^  But  inasmuch  as  bills  very  generally 
are  printed  with  full  punctuation  before  legislative  action,  the 
courts  have  modified  to  some  extent  the  old  rule  which  wholly 
disregarded  punctuation  marks.  The  Supreme  Court  of  Illinois  has 
said:  “Section  13  of  Article  IV  of  the  constitution  of  1870  provides: 
‘Every  bill  shall  be  read  at  large  on  three  different  days,  in  each 
house ;  and  the  bill  and  all  amendments  thereto  shall  be  printed 
before  the  vote  is  taken  on  final  passage.’  The  punctuation  of  a 
bill  so  adopted  cannot  be  said  to  be  the  mere  work  of  the  engrosser 
or  the  public  printer.  The  punctuation  is  rather  a  part  of  the  act 
as  adopted  by  the  General  Assembly,  and  while  it  remains  sub¬ 
ordinate  to  the  text  it  may  be  of  material  assistance  in  determining 
the  legislative  intent.  Certainly  it  should  not  be  disregarded  un¬ 
less  upon  an  inspection  of  the  whole  act  or  section  involved  it  is 
apparent  the  punctuation  operates  to  vary  the  true  sense  and 
meaning  of  the  enactment.”®® 

In  a  later  case,  the  court  in  construing  the  words  “Board  of 
County  Commissioners”  in  Section  17  of  Article  VI  of  the  consti¬ 
tution,  relies  largely  on  the  fact  that  these  words  are  enclosed 
in  quotation  marks.  “The  quotation  marks  add  to  the  preciseness 
of  expression  and  indicate  an  exact  transfer  of  the  words  from 
some  other  place.”®® 

As  compared  with  the  text,  punctuation  still  remains  rela¬ 
tively  unimportant.  But  good  draftsmanship  will  observe  gram¬ 
matical  rules  in  this  regard  not  only  to  avoid  introducing  an 
ambiguity  but  also  because  correct  punctuation  is  a  valuable  aid 
to  fortify  and  make  clear  the  legislative  intent. 

s^Perteet  v.  People,  65  III.  230  (1872). 

Commissioners  of  Highways,  v.  Ellwood,  193  Ill,  304  (1901). 

People  V.  McCormick,  261  Ill.  413  (1914). 


66 


EFFECT  OF  GENERAL  PROVISIONS  RELATING  TO 
PARTIAL  INVALIDITY,  LIBERAL  INTERPRE¬ 
TATION  AND  REPEALS. 


Partial  invalidity  section:  It  is  quite  common  to  incorpor¬ 
ate  in  bills  a  section  providing  that  if  any  part  of  the  act  is  de¬ 
clared  unconstitutional,  that  shall  not  affect  the  validity  of  the  re¬ 
mainder  if  it  can  be  given  effect  without  the  invalid  portion.  This 
is  merely  an  expression  of  a  rule  of  construction  which  is  recog¬ 
nized  by  the  courts.  In  People  v.  KnopP®  the  court  said:  “The 
fact  that  a  part  of  the  act  is  unconstitutional  does  not  require  that 
the  remainder  shall  be  held  void,  unless  all  the  provisions  are  so 
connected  as  to  depend  upon  each  other.  The  constitutional  and 
unconstitutional  provisions  may  even  be  contained  in  the  same 
section  and  yet  be  perfectly  distinct  and  separable,  so  that  the 
first  may  stand  though  the  last  fall.  ...  If,  when  the  unconstitu¬ 
tional  portion  is  stricken  out,  that  which  remains  is  complete  in 
itself  and  capable  of  being  executed  wholly  independent  of  that 
which  was  rejected,  it  must  be  sustained.” 

The  valid  part,  to  be  given  effect,  must  constitute  a  complete 
act  and  be  in  accord  with  the  legislative  purpose  as  determined 
from  the  whole  act  and  be  such  that  the  court  can  say  that  the  legis¬ 
lature  would  have  passed  it  with  the  invalid  parts  eliminated.®^  It 
is  often  extremely  difficult  for  a  court  to  say  that,  if  the  invalid 
portions  are  eliminated,  the  balance  of  the  act  standing  alone  ac¬ 
complishes  the'  legislative  purpose.  In  such  a  case,  it  might  be 
thought  that  a  statement  to  the  effect  that  the  invalid  portion 
shall  not  defeat  the  remainder,  would  aid  the  court  by  indicating 
the  legislative  desire.  It  is  doubtful,  however,  whether  such  is  the' 
result. 

The  Public  Utilities  Act  of  1913  provided  for  the  regulation  of 
public  utilities  except  those  owned  by  municipalities.  A  companion 
bill  which  was  passed  at  the  same  session  of  the  General  Assembly 
regulated  the  public  utilities  exempted  from  the  general  act.  It  was 
contended  that  the  exception  in  the  Public  Utilities  Act  in  favor  of 
municipally  owned  public  utilities  was  unconstitutional  but  that  the 
act  could  be  given  effect  with  the  exception  stricken*  out.  Section  83 
provided  that  “if  any  section,  subdivision,  sentence  or  clause  of  this 

People  V.  Knopf,  183  Ill.  410  (1900);  see  also  Cooley,  Constitutional  Limi¬ 
tations  178. 

C.  B.  &  Q.  R.  R.  Co.  V.  Jones  149  Ill.  361  (1894)  ;  Springfield  Gas  Co.  v. 
Springfield,  292  Ill.  236  (1920):  People  v.  City  of  Rock  Island,  271  Ill.  412 
(i916);  Joel  v.  Bennett,  276  Ill.  537  (1917). 


67 


act  is  for  any  reason  held  invalid  or  to  be  unconstitutional,  such  de¬ 
cision  shall  not  affect  the  validity  of  the  remaining  portion  of  this 
act.”  Notwithstanding  this  saving  clause  the  court  held  that  the  plan 
of  the  General  Assembly  was  for  one  scheme  of  regulation  for  pri¬ 
vately  owned  public  utilities  and  another  for  those  owned  by  munici¬ 
pal  corporations  and  that  the  Public  Utilities  Act  with  the  exception 
stricken  out  was  not  an  expression  of  the  legislative  will  and  would 
have  not  received  the  approval  of  the  General  Assembly.  “Section 
83,”  the  court  says,  “was  not  intended  to  nullify  any  rule  of  statutory 
construction  and  must  receive  a  construction  consistent  with  the  rules 
of  constitutional  law.  While  this  section  may  be  some  indication  of 
legislative  intention,  yet  in  construing  it,  we  must  give  due  considera¬ 
tion  to  the  rules  heretofore  laid  down  by  this  court  in  the  interpreta¬ 
tion  of  statutes.”  (Inasmuch  as  the  majority  opinion  held  the  ex¬ 
ception  as  to  municipally  owned  public  utilities  valid,  the  decision  on 
this  point  is  obiter  dictum.)  A  dissenting  opinion  takes  the  view 
that  the  legislative  plan  was  to  create  a  commission  to  regulate  pub¬ 
lic  utilities  and  that  the  inclusion  of  those  owned  by  municipalities 
did  not  destroy  that  scheme  although  it  modified  it  in  that  detail.®^ 
In  a  recent  case  in  which  the  court  held  unconstitutional  the  primary 
election  law  of  1919  it  was  contended  that  the  clause  repealing 
the  prior  primary  act  was  valid  and  effective  regardless  of  the  in¬ 
validity  of  all  other  portions  of  the  act.  Section  80  of  the  act  con¬ 
tained  a  partial  invalidity  clause  which  provided  that  the  invalidity 
of  any  portion  should  not  affect  the  validity  of  any  other  portion  which 
could  be  given  effect  without  the  invalid  part.  The  court  says :  “The 
provision  of  Section  80  is  without  any  effect  in  aid  of  the  plaintiff  in 
error’s  contention  for  the  reason  that  it  merely  states  the  uniform 
rule  of  the  courts,  which  upholds  every  valid  portion  of  an  act  which 
can  be  operative  and  effective  without  the  portion  which  is  declared 
invalid.”  The  court  then  considers  whether  it  was  the  legislative  in¬ 
tent  that  the  repealing  clause  should  in  all  events  be  valid  and  de¬ 
cides  that  this  provision  was  merely  intended  to  clear  the  way  for  the 
new  act  and  consequently  was  dependent  upon  it.®^  About  all  that 
can  be  said  for  a  “partial  invalidity”  provision  is  that  it  furnishes 
a  basis  for  a  decision  if  the  court  thinks  that  the  valid  portion  should 
be  sustained  and  if  not,  it  can  be  disregarded. 

The  difficulty  as  to  a  partial  invalidity  clause  is  that  its  generality 
affords  no  real  light  on  the  legislative  intent  as  to  particular  portions  of 
an  act.  If,  however,  a  contemplated  measure  should  contain  sep¬ 
arable  parts  of  recognized  doubtful  constitutionality,  and  a  statement 
in  the  act  to  the  effect  that  the  invalidity  of  a  specified  portion  should 
not  affect  the  remainder,  the  court  would  probably  attach  consider¬ 
able  weight  to  this  expression  of  legislative  desire.  However  no  in¬ 
stance  of  such  a  particular  reference  in  a  partial  invalidity  clause  is 
known. 

Spring-field  Gas  Co.  vs.  Springfield,  292  Ill.  236  (1920). 

S'*  People  V.  Fox.  294  Ill.  263  (1920). 


68 


Liberal  interpretation:  Another  provision  of  a  general  na¬ 
ture  relating  to  construction  is  the  statement  to  the  effect  that  the 
act  shall  receive  a  liberal  interpretation  to  carry  out  the  purpose  ex¬ 
pressed  therein.  To  effectuate  the  intention  of  the  legislature  and  se¬ 
cure  the  most  beneficial  operation  is  a  familiar  rule  of  construction ; 
one,  however,  which  is  not  supreme  but  which  must  be  applied  along 
with  many  others  which  may  govern  in  particular  instances.  In  the 
case  of  certain  kinds  of  statutes  such  as  penal  measures  and  acts 
in  derogation  of  the  common  law  or  property  rights,  other  principles 
control  and  require  a  strict  construction. 

The  provision  for  liberal  interpretation  is,  therefore,  of  doubt¬ 
ful  value.  As  in  the  case  of  partial  invalidity  clauses,  it  may  be 
referred  to  by  the  court  in  support  of  a  decision  which  would 
have  been  the  same  without  such  a  provision,  but  in  a  case  where 
other  principles  of  construction  must  control,  it  is  disregarded. 
Thus,  an  act  incorporating  a  theological  seminary  granted  an  ex¬ 
emption  from  taxation  as  to  all  property  “belonging  to  or  apper¬ 
taining  to  said  seminary.”  The  section  following  provided  that  the 
act  “shall  be  construed  liberally  in  all  courts  for  the  purpose  therein 
expressed.”  But  this  provision  was  not  permitted  to  override  the 
general  rule  that  laws  exempting  property  from  taxation  are  to  be 
strictly  construed  and  all  doubts  resolved  in  favor  of  the  public. 
The  court  said :  “We  do  not  think  this  language  was  intended  to 
or  could  be  held  to  change  or  qualify  the  general  rules  of  construc¬ 
tion  applicable  to  the  section  under  consideration  ...  In  deter¬ 
mining  what  purpose  is  expressed  in  the  section,  resort  must 
necessarily  be  had  to  the  general  rules  for  considering  such  laws.®^ 

But  if  the  courts  are  not  disposed  to  give  much  weight  to  a 
general  provision  for  liberal  construction,  such  a  provision  directed 
toward  a  particular  action  or  proceeding  would  doubtless  be  given 
effect.  There  are  a  number  of  such  provisions  in  the  laws  of  Illi¬ 
nois.  Section  18  of  the  Illinois  Securities  Law®°  provides  with  re¬ 
gard  to  the  filing  of  statements  or  documents  by  the  Secretary 
of  State  and  suit  to  compel  such  act,  that  “merely  technical  irregu¬ 
larities  in  the  procedure  of  the  Secretar)'^  of  State  shall  be  disre¬ 
garded.  ...”  The  Public  Utilities  Act,  Section  83®'’  has  a  similar 
provision.  “A  substantial  compliance  with  the  requirements  of  this 
act  shall  be  sufficient  to  give  effect  to  all  the  acts,  orders,  deci¬ 
sions,  rules  and  regulations  of  the  commission,  and  they  shall  not 
be  declared  inoperative,  illegal  or  void  for  any  omission  of  a  tech¬ 
nical  nature  in  respect  thereto.” 


Repeals:  Statutes  frequently  provide  that  “all  acts  and  parts 
of  acts  in  conflict  herewith  are  repealed,”  without  specifying  par¬ 
ticularly  the  statutes  which  are  to  be  affected.  Inasmuch  as  the 
Supreme  Court  has  repeatedly  said  that  where  a  subsequent  statute 

People  V.  Chicago  Theological  Seminary,  174  Ill.  177  (1898). 

9>Hiird,  1919,  p.  2672. 

»5Hurd.  1919,  p.  2357. 


69 


is  repugnant  to  a  former  statute,  or  inconsistent  with  it,  a  repeal 
of  the  earlier  statute  by  the  subsequent  one  will  be  implied,^^  it  is 
difficult  to  understand  how  such  a  provision  can  add  anything  to 
the  general  rule.  This  is  the  view  of  the  Supreme  Court.  “While 
the  insertion  of  a  general  provision  in  a  statute  declaring  a  re¬ 
peal  of  all  inconsistent  acts  or  parts  of  acts  (without  naming 
any  particular  act)  implies  that  the  new  statute  is  to  some  extent 
repugnant  to  certain  laws  theretofore  enacted,  the  insertion  of 
such  a  general  repealing  clause  is  generally  held  to  add  nothing 
to  the  repealing  effect  of  the  act.  Logically,  such  a  general  re¬ 
pealing  section  adds  nothing  to  the  language  or  meaning  of  the 
act  and  takes  nothing  from  it.  All  prior  conflicting  laws  and  parts 
of  laws  are  impliedly  repealed  by  conflicting  provisions  of  the  law 
enacted.”^® 

In  view  of  such  a  pronouncement  by  the  Supreme  Court,  the 
use  of  a  general  repealing  clause  is  not  advisable.  The  great  diffi¬ 
culty  in  connection  with  repeals  by  implication  is  the  determination 
whether  an  irreconcilable  conflict  exists  between  a  subsequent  act 
and  a  prior  act  or  a  part  of  the  prior  act.  A  general  repealing  clause 
fails  to  disclose  the  legislative  purpose  as  to  an  earlier  statute 
and  thereby  adds  to  the  burden  of  construction  a  question  which 
should  properly  be  settled  by  the  law-making  body.  Whether  a 
proposed  measure  necessitates  or  makes  desirable  the  repeal  of  an 
earlier  act  should  be  determined  by  the  bill-drafter.  And  if  the  repeal 
of  an  act  is  necessary  or  desirable,  it  should  be  accomplished  by  a 
specific  repeal  provision  which  names  the  act  repealed.  The  blanket 
repeal  clause  is  a  slip-shod  and  inefficient  substitute  which. should  not 
be  tolerated  in  careful  legislation. 

Lang  V.  Friesenecker,  213  Ill.  598  (1905);  Merlo  v.  Johnston  City  and 
Big  Muddy  Coal  Co.,  258  Ill.  328  (1913);  People  v.  Wabash  Railroad  Co.,  276 
Ill.  92  (1916). 

Hoyne  v.  Danisch,  264  Ill.  467  (1914);  People  v.  City  of  Rock  Island,  271 
Ill.  412  (1916). 


PRACTICAL  FACTORS  AFFECTING  DRAFTSMANSHIP. 


In  the  construction  of  statutes  courts  look  primarily  to  the 
language  employed.  But  the  whole  purpose  of  judicial  construc¬ 
tion — the  fundamental  rule — is  to  ascertain  and  give  effect  to  the 
legislative  intent,  however  expressed.  Consequently  courts  may 
look  beyond  the  words  of  a  particular  section  or  act  to  other  con¬ 
siderations  which  may  disclose  the  desire  and  purpose  of  the  law¬ 
making  body.  The  result  may  be  to  extend  @r  restrict  the  effect 
of  the  statutory  language,  or  even  to  nullify  its  literal  purport 
and  substitute  therefor  a  meaning  in  harmony  with  what  is  deemed 
the  purpose  of  the  measure.  It  is  true  that  the  courts  have  held 
that,  “The  meaning  and  intent  of  the  legislature  must  be  ascer¬ 
tained  from  the  words  employed,  and  where  there  is  no  ambiguity 
there  is  not  room  for  construction.  Tt  is  not  allowable  to  inter¬ 
pret  what  has  no  need  of  interpretation,  and,  when  the  words 
have  a  definite  and  precise  meaning,  to  go  elsewhere  in  search 
of  conjecture  in  order  to  restrict  or  extend  the  meaning.’  Or  as 
the  United  States  Supreme  Court  has  tersely  phrased  it, — “the 
province  of  construction  lies  wholly  within  fhe  domain  of  am¬ 
biguity.”^  But  because  the  mind  of  the  legislator  cannot  foresee 
and  provide  for  every  conceivable  situation  and  because  complex 
trains  of  thought  must  be  conveyed  by  the  imperfect  and  approxi¬ 
mate  symbols  of  words,  every  statute  in  some  aspects  presents  the 
necessity  for  construction.  As  a  matter  of  fact,  resort  is  had  to 
considerations  other  than  the  particular  language  even  when  that 
language  has  a  well-defined  meaning.  This  appears  from  the  state¬ 
ment  of  the  court  in  the  case  above  cited.  “In  the  interpretation 
of  statutes,  words  are  to  be  taken  in  their  ordinary  meaning  in 
general  or  popular  use,  unless  .  .  .  it  is  apparent  from  the  whole 
law  and  other  laws  in  pari  materia  that  a  different  meaning  was  in¬ 
tended.”^  Therefore,  it  is  not  enough  for  the  bill-drafter  to  seek 
merely  a  clear  mode  of  expression,  but  he  must  take  into  account 
such  other  matters  as  may  weigh  with  the  court  in  considering 
his  language. 

It  is  a  familiar  principle  of  construction  that  statutes  are  to 
be  construed  as  a  whole.  The  import  of  a  word,  a  sentence  or  a 
section  may  be  changed  when  it  is  considered  not  independently 
but  as  a  subordinate  part  of  an  act,  all  of  which  refers  to  a  single 


Chudnovski  v.  Eckels,  232  Ill.  312  (1908). 
^Hamilton  v.  Rathbone,  175  U.  S.  414  (1899). 
2  Chudnosvki  v.  Eckels,  232  Ill.  312  (1908). 


71 


subject  and  seeks  to  effect  only ‘one  purpose. The  Supreme  Court 
in  one  instance  uses  the  following  language :  “But,  as  already  ob¬ 
served,  to  construe  and  enforce  this  section  according  to  its  literal 
terms  would,  in  all  cases  of  the  kind  supposed,  defeat  that  class 
of  attachment  liens  which  the  act  taken  as  a  whole  manifestly  in¬ 
tended  to  protect.”^  And  in  construing  a  section  of  the  Road  and 
Bridge  Act,  the  court  said  :  “The  impression  upon  the  reading  of 
the  section  certainly  is  that  the  extension  of  the  tax  is  to  be  upon 
the  assessment  of  the  previous  year.  Such  seems  to  be  the  literal 
reading.  But  for  the  ascertaining  of  the  real  meaning,  we  are  not 
to  be  confined  to  the  words  employed,  but  may  look  to  the  former 
law,  and  to  other  statutory  provisions.”^  There  are  many  other 
decisions  in  Illinois  to  the  effect  that  “the  several  provisions  of  a 
statute  should  be  construed  together  in  the  light  of  the  general 
objects  and  purposes  of  the  enactment,  and  so  as  to  give  effect 
to  the  main  intent,  although  particular  provisions  are  thus  con¬ 
strued  not  according  to  their  literal  meaning.”® 

In  the  search  for  the  legislative  purpose  in  enacting  a  measure, 
the  court  will  consider  what  the  law  was  at  the  time  of  its  enact¬ 
ment.  Whether  the  law  at  that  time  was  statutory  or  the  common 
law,  it  furnishes  a  guide  as  to  the  reason  for  the  enactment  since 
the  effect  of  the  enactment  must  necessarily  be  to  change  or  amend 
the  legal  situation  as  it  existed  before.  That  this  is  regarded  as  an 
important  aid  to  construction  is  evidenced  by  this  statement  from 
the  Supreme  Court.  “It  is  universally  conceded  that  one  of  the 
most  efficient  means  in  ascertaining  the  legislative  intent  in  the 
adoption  of  a  new  statute  is  to  consider  it  with  reference  to  the 
state  of  the  law  before  its  adoption,  and  particularly  with  reference 
to  the  previous  legislation  on  the  same  subject.  A  passing  notice, 
therefore,  of  some  of  the  previous  legislation  with  respect  to  the 
granting  of  licenses  for  the  sale  of  intoxicating  liquors,  may  aid 
us  somewhat  in  our  present  inquiries.”^ 

The  “state  of  the  law”  is  one  fact  of  several  which  may  be 
considered  as  affording  an  indication  of  the  motive  in  the  passage 
of  an  act.  Other  circumstances  which  are  connected  with  an  act, 
the  mischief  which  it  recognizes  and  the  remedy  sought,  all  may 
be  looked  to  as  indicative  of  the  legislative  will.  “In  determining 
the  meaning  of  a  statute,  a  court  will  have  regard  to  existing  cir¬ 
cumstances,  or  contemporaneous  conditions,  and  also  to  the  object 
sought  to  be  obtained  by  the  statute,  and  the  necessity  or  want 

®  An  act  of  1919  (Hurd,  1919,  p.  853)  authorizing  county  memorials  for  sol¬ 
diers  and  sailors  contains  an  example  of  poor  coordination  in  the  provisions 
relating  to  the  referendum  feature.  Section  1  has  these  provisions.  “No  ballot 
which  has  not  a  cross  opposite  the  word  “yes”  or  “no”  shall  be  counted  either 
for  or  against  the  proposition. 

If  a  ma.iority  of  the  votes  cast  at  such  election  are  in  favor  thereof  .  .  .” 
The  second  expression  has  been  held  to  mean  a  majority  of  the  highest  total 
votes  cast  for  the  candidates  for  anv  office.  In  other  words  a  ballot  not 
marked  is,  in  effect,  counted  against  the  proposition.  The  two  statements  pin 
view  of  the  court’s  construction  of  the  second  one)  are  contradictory  and  in¬ 
harmonious. 

*Hill  V.  Harding,  93  Ill.  77  (1879). 

“Wabash.  St.  Louis  &  Pacific  Ry.  Co.  v.  Binkert,  106  Ill.  298  (1883). 

®  People  V.  City  of  Chicago,  152  Ill.  546  (1894). 

’Wright  V.  People,  101  Ill.  126  (1881). 


72 


of  necessity  for  its  adoption.”*  “In  order  to  ascertain  the  true 
spirit  and  import  of  an  act,  the  courts  may  also  consider  the  mis¬ 
chiefs  such  act  was  desii^ned  to  remedy. “In  construino'  statutes 
we  must  look  to  the  intention  of  the  law-maker,  and  one  of  the 
means  of  ascertaining^  the  intention  is  to  look  to  the  mischief  that 
existed  under  the  old  law,  as  well  as  to  the  provisions  adopted  to 
remedy  the  evil.”^° 

To  what  extent  the  court  will  consider  conditions  and  facts  re¬ 
lating  to  a  measure  is  evidenced  by  the  opinion  of  the  court  in  con¬ 
struing  the  language  of  an  act  creating  sanitary  districts.  Section 
23  of  that  act  reads  in  part :  “The  district  constructing  a  channel  to 
carry  water  from  Lake  Michigan  of  any  amount  authorized  by  this 
act  .  .  .  shall  remove  the  dams  at  Henry  and  Copperas  Creek  in  the 
Illinois  river,  before  any  water  shall  be  turned  into  the  said  chan¬ 
nel.”  The  court  reviews  the  building  of  the  dams  by  the  state  at  an 
expense  of  a  quarter  of  a  million  dollars,  various  measures  for  their 
repair  and  preservation,  their  beneficial  effect  on  navigation  on  the 
Illinois  river  and  decides  from  these  outside  facts  that  the  legislature 
did  not  intend  what  the  language  plainly  expresses,  i.  e.  the  removal 
of  the  dams,  but  intended  merely  to  permit  their  destruction  if  it 
became  necessary.^^ 

The  effect  of  the  prior  status  of  the  law  upon  a  subsequent 
statute  is  expressed  by  two  rules  of  construction,  both  of  which  em¬ 
body  the  same  principle.  (1)  If  the  prior  existing  state  of  the  law 
was  determined  by  the  common  law,  a  statute  in  derogation  thereof 
will  be  strictly  construed  so  as  not  to  alter  the  common  law  farther 
than  the  statutory  terms  expressly  declare.^ ^  (2)  A  statute  must  be 

construed  with  reference  to  the  whole  system  of  which  it  is  a  part. 
Statutes  relating  to  the  same  subject  should  be  construed  in  pari 
materia  as  though  forming  one  body  of  law  and  seeming  inconsist¬ 
encies  should  be  so  construed,  if  ]:)ossible,  as  to  give  to  each  its  ap- 
])ropriate  effect  and  operation.^*  The  second  rule,  in  other  words,  is 
that  the  law  does  not  favor  repeals  of  statutes  by  implication  but 
will  adopt  a  construction  which  will  reconcile  the  provisions  of  each. 
This  principle,  then,  is  apparent  in  the  construction  of  a  statute, 
whether  it  supersedes  another  act  or  the  common  law,  that  unless 
it  necessarily  by  its  terms  alters  or  displaces  the  prior  law,  that  prior 
law  will  influence  and  modify  the  construction  of  the  subsequent  act  so 
as  to  permit  both  to  stand. 

In  some  instances,  the  construction  of  an  act  itself  is  not  in¬ 
fluenced  by  other  laws,  but  the  situation  to  which  it  relates  is  af¬ 
fected  or  controlled  by  other  statutes  so  that  the  ultimate  result  is  not 

*  Hawes  v.  City  of  Chicago,  158  Ill.  653  (1895);  People  v.  Kipley,  171  Ill.  44 
(1898):  People  v.  Harrison,  191  Ill.  257  (1901). 

»Soby  V.  People.  134  Ill.  66  (1890);  Bobel  v.  People,  173  Ill.  19  (1898). 

I'^Ball  V.  Chadwick.  46  Ill.  28  (1867);  People  v.  Wabash,  St.  Louis  &  Pacific 
Ry.  Co.,  104  Ill.  476  (1882). 

Canal  Commissioners  v.  Sanitary  District.  184  Ill.  597  (1900). 

Mackin  v.  Haven,  187  Ill.  480  (1900);  Canadian  Bank  of  Commerce  v. 
McCrea,  106  Ill.  281  (1882);  Turnes  v.  Brenckle,  249  Ill.  394  (1911). 

L.  S.  &  M.  S.  Ry.  Co.  v.  Chicago,  148  Ill.  509  (1893);  Devous  v.  Gallatin 
County,  244  Ill.  40  (1910);  South  Park  Commissioners  v.  First  National  Bank. 
177  Ill  234  (1898). 


73 


according  to  the  statutory  language.  An  illustration  will  make  this 
clear.  In  1919,  the  General  Assembly  amended  Section  189  of  the 
School  Law  to  give  relief  to  school  districts  hy  permitting  them  to 
levy  a  higher  per  cent  tax  rate.  The  law  now  reads  that  by  a  refer¬ 
endum  vote  2%  may  be  levied  for  educational  purposes.  But  in  some 
districts,  notably  Chicago,  the  scaling  of  this  tax  levy  under  the  Juul 
law^^  nullified  this  increase  and  prevented  the  desired  relief.  Any 
tax  levy  not  expressly  exempted  from  the  provisions  of  the  Juul  law 
may  be  affected  in  counties  where  the  aggregate  of  tax  rates  is  high. 
The  Civil  Administrative  Code,  Indeterminate  Sentence  Act,  and  a 
large  number  of  other  statutes  all  operate  generally  in  such  manner  as 
to  affect  other  particular  measures. 

Sometimes  statutes  are  enacted  which  have  already  received  a 
judicial  construction.  This  may  be  done  by  the  legislature  re-enact- 
in'g  an  earlier  act  or  by  adopting  a  statute  of  another  state  which  has 
been  considered  by  the  courts  of  that  state.  In  either  case,  the  judi¬ 
cial  decisions  are  generally  to  be  taken  as  a  part  of  it.  In  the  case  of 
re-enactments  which  substantially  follow  the  language  of  an  earlier 
act,  it  is  presumed  that  the  legislature  had  in  view  the  construction 
which  the  court  placed  on  the  earlier  act  and  adopted  such  construc¬ 
tion  as  the  true  and  intended  construction  to  be  placed  on  the  subse¬ 
quent  one.^®  “The  court  will  not,  however,  follow  this  rule  blindly 
where  the  language  of  the  new  act,  when  construed  in  the  light  of  the 
context,  indicates  a  different  legislative  intention.”^'’ 

A  somewhat  similar  principle  obtains  in  the  case  of  statutes 
adopted  from  other  states.  “In  adopting  the  statute  of  another  state 
it  is  presumed  that  our  General  Assembly  intended  that  it  should  re¬ 
ceive  the  construction  given  it  by  the  courts  of  the  state  from  which 
it  was  adopted,  previous  to  its  adoption,  unless  such  construction  is 
in  conflict  with  the  spirit  and  policy  of  our  laws.”^' 

There  is  no  such  thing,  then,  as  a  wholly  independent  statute,  un¬ 
related  to  other  acts  and  speaking  hy  its  words  alone.  Other  laws, 
circumstances,  judicial  decisions  all  form  the  background  which  gives 
form  and  meaning  to  a  measure.  Even  the  words  themselves  fake 
their  import  from  these  outside  considerations.  In  a  decision  cited 
above^®  the  court  said :  “In  determining  what  is  meant  by  the  ex¬ 
pression  ‘corporate  authorities  of  any  town,’  reference  may  be  made 
to  acts  of  the  legislature,  passed  from  time  to  time  upon  the  subject 
of  parks  and  park  commissioners.”  In  the  first  place,  a  bill  should 
be  constructed  as  a  whole,  each  part  harmonizing  with  the  others  and 
the  whole  act  working  single-mindedly  toward  a  definite  purpose.  Not 
only  that  but  it  should  be  co-ordinated  to  take  its  proper  place  in  the 
whole  system  relating  to  the  general  subject  of  which  it  forms  a  part. 
Only  painstaking  study  and  investigation  in  the  field  of  legislation  in 

An  Act.  concerning’  the  levy  and  extension  of  ta,xes.  Hurd,  1919,  p,  2543. 

McGann  v.  People,  194  Ill.  526  (1902);  Kelley  v.  Northern  Trust  Co.,  190 
Ill.  401  (1901). 

i^Atton  V.  S’outh  Chicago  City  Ry.  Co.,  236  Ill.  507  (1908). 

Rhoads  v.  C.  &  A.  R.  R.  Co.,  227  Ill.  328  (1907);  Re  Qua  v.  Graham,  187 
Ill.  67  (1900);  People  v.  Griffith,  245  Ill.  532  (1910). 

1®  South  Park  Commissioners  v.  First  National  Bank,  177  Ill.  234  (1898). 


74 


which  it  is  designed  to  operate  can  equip  the  bill-drafter  to  accom¬ 
plish  this  even  moderately  well.  And  to  succeed  perfectly  is  beyond 
the  limits  of  human  skill.  Legislation  from  other  jurisdictions  should' 
always  be  considered  in  connection  with  the  construction  placed  on 
it  by  the  courts  of  those  jurisdictions  since  that  meaning  generally 
attaches  to  it  when  adopted  in  this  state. 


75 


AMENDATORY  LEGISLATION. 


In  drafting  a  bill  it  must  be  determined  whether  the  desired 
result  can  be  attained  by  an  amendment  to  an  existing  statute  or 
whether  the  enactment  shall  take  the  form  of  an  independent  act. 
The  bulk  of  present-day  legislation  is  directed  toward  the  removal 
of  defects  and  the  making  of  improvements  in  existing  statutory  law. 
Only  occasionally  is  a  new  field  opened  for  legislation,  and  a  measure 
enacted  which  is  unrelated  to  other  statutes.  It  is  important  not 
only  that  a  provision  be  well  constructed  to  accomplish  the  immed¬ 
iate  ends  desired  but  also  that  it  take  its  appropriate  place  in  the 
system  of  which  it  is  a  part,  and  that  it  leave  the  whole  legislation 
relating  to  the  particular  subject  in  the  best  possible  form.  Statutes 
which  are  amendatory  either  in  form  or  substance  present  some 
distinct  problems  both  constitutionally  and  from  the  standpoint 
of  draftsmanship. 


Amendment  by  reference:  The  constitution  provides  that 
“no  law  shall  be  revived  or  amended  by  reference  to  its  title  only, 
but  the  law  revived,  or  the  section  amended,  shall  be  inserted 
at  length  in  the  new  act.”^®  The  early  construction,  placed  upon 
this  provision  by  the  Supreme  Court  limited  its  application  to  acts 
expressly  purporting  to  amend  earlier  laws,  i.  e.,  statutes  amenda¬ 
tory  in  form.“°  Later  the  construction  was  extended  to  apply  to 
acts  amendatory  in  substance. 

As  applied  to  statutes  which  expressly  purport  to  amend  prior 
laws,  this  provision  entails  no  difficulties  for  the  bill-drafter.  But 

^9  The  reference  is  to  Article  IV  Section  13  of  the  constitution  of  1870.  The 
Constitutional  Convention  now  in  session  has  adopted  a  proposal  which  would 
replace  this  language  with  the  following  provision. 

“No  Act  shall  be  revived  by  reference  to  its  title  only.  Any  act  expressly 
purporting  to  amend  a  section  or  sections  of  an  earlier  law,  shall  set  forth 
at  length  the  section  or  sections  as  amended.” 

The  purpose  of  this  change  in  the  language  is  to  limit  the  constitutional 
provision  to  express  amendatorv  acts  and  to  exclude  statutes  which  are 
merelv  amendments  in  effect. 

20  People  V.  Wright,  70  Ill.  388  (1873)  ;  Timm  v.  Harrison,  109  Ill.  593  (1884)  ; 

School  Directors  v.  School  Directors,  135  Ill.  464  (1891)  ;  People  v.  Loeffler, 

175  Ill.  585  (1898). 

21  People  V.  Knopf,  183  Ill.  410  (1900);  People  v.  Election  Commissioners, 

221  Ill.  9  (1906)  ;  Badenoch  v.  City  of  Chicago,  222  Ill.  71  (1906)  ;  People  V. 
Crossley.  261  Ill.  78  (1913)  ;  People  v.  Stevenson,  272  111.  325  (1916)  ;  Board  of 
Education  v.  Haworth,  274  Ill.  538  (1916). 

An  amendatory  statute  might  comply  with  the  constitutional  provision 
as  to  one  section  bv  setting  it  out  as  amended  and  yet  in  effect  by  its  sub¬ 
stance  amount  to  an  amendment  of  some  other  section  or  act  which  was  not 
set  out  at  length.  This  would  make  the  amendatory  act  ob.jectionable  from 
a  constitutional  standpoint.  See  Galpin  v.  City  of  Chicago,  269  Ill.  27  (1915). 


76 


by  its  extended  construction  it  imperils  much  leg’islation  and  leaves 
many  statutes  in  doubt  until  the  Supreme  Court  has  passed  upon 
their  constitutionality.  The  court  has  of  necessity  recognized  that 
“it  cannot  be  held  that  this  clause  of  the  constitution  embraces 
every  enactment  which,  in  anv  degree,  however  remotely  it  may 
be,  affects  a  prior  law  on  a  given  subject  for,  to  so  hold,  would 
be  to  bring  about  an  evil  far  greater  than  the  one  sought  to  be 
obviated  by  this  clause.”"^  And  quoting  the  Supreme  Court  of 
Michigan  in  People  v.  Mahoney,  13  Mich.  484,  the  court  continues : 
“If,  whenever  a  new  statute  is  passed,  it  is  necessary  that  all  prior 
statutes  modified  by  it,  by  implication,  should  be  re-enacted  and 
published  at  length  as  modified,  then  a  large  portion  of  the  whole 
code  of  laws  of  the  state  would  require  to  be  republished  at  every 
session,  and  parts  of  it  several  times  over,  until,  from  mere  im¬ 
mensity  of  material,  it  would  be  impossible  to  tell  what  the  law 
was.”  Quite  obviously  this  construction  must  be  limited  to  stat¬ 
utes  which  materially  affect  prior  acts.  The  difficulty,  however,  is 
that  no  rule  can  be  formulated,  no  standard  fixed  bv  which  it  is 
possible  to  know  whether  a  particular  measure  falls  within  or 
without  the  limits  of  this  construction.  The  proposition  as  stated 
by  the  Supreme  Court,  only  needs  to  be  quoted  to  show  how  in¬ 
definite  and  vague  these  limits  are. 

“(1)  An  act  which  is  complete  within  itself  and  does  not 
purport,  either  in  its  title  or  in  the  body  thereof,  to  amend  or  re¬ 
vive  any  other  act,  is  valid  even  though  it  may  by  implication 
modify  or  repeal  prior  existing  statutes. 

(2)  An  act,  though  otherwise  complete  within  itself,  which 
purports  to  amend  or  revive  a  prior  statute  by  reference  to  its 
title  onlv,  and  does  not  set  out  at  length  the  statute  amended 
or  revived,  is  invalid,  regardless  of  all  other  questions. 

(3)  An  act  which  is  incomplete  in  itself  and  in  which  new 
provisions  are  commingled  with  old  ones,’  so  that  it  is  necessary 
to  read  the  two  acts  together  in  order  to  determine  what  the  law 
is,  is  an  amendatory  act  and  invalid  under  the  constitution,  and  it 
is  unimportant,  in  such  case,  that  the  act  does  not  purport  to 
amend  or  revive  any  other  statute. 

There  being  no  means  of  determining  beyond  question  whether 
a  particular  act  offends  in  this  regard,  prudence  demands  that  the 
bill-drafter  steer  as  wide  a  course  as  possible  from  this  danger 
zone.  He  will  not,  of  course,  frame  as  an  independent  act  a  mea¬ 
sure  which  has  no  purpose  whatever  except  to  correct  some  fault 
or  make  a  change  in  a  prior  law.  A  Washington  statute  provided 
that  there  should  be  exempt  from  execution  and  attachment  in 
favor  of  every  householder,  personal  property  to  the  amount  of 
81,000,  in  addition  to  the  nronertv  exempt  under  section  486  of 
the  code.  This  is  clearly  objectionable'^  and  can  easily  be  avoided. 

22 -Tii-nTTi  V.  Hf'rris'^n.  lOO  nr  500 

"s  Per  pip  V  Ovosplev  Til.  7S  ( 1 91  .  Por  a  review  of  the  decisions  of 

tPrt  c:iir>vnrr.r  Ooin’t  and  a  di=!c\ission  of  this  snbT^ct  see  Constitutional  Converi' 
tions  in  TUinois  and  r'on=titntidn  of  the  Sti^te  of  Illinois,  Annotated, 

Copland  v.  Pirie,  26  Wash.  481  (1  901). 


77 


On  the  other  hand,  when  an  act  apparently  attempts  a  complete 
treatment  of  a  subject,  its  effect  on  other  statutes  becomes  of  less 
sigi'nificance  and  the  danger  of  unconstitutionality  is  more  remote. 
Thus,  if  the  only  purpose  of  an  act  should  be  the  abolition  of  the 
State  Public  Utilities  Commission  and  the  vesting-  its  powers  and  ^ 
duties  in  another  board  or  department  without  complying  with 
this  constitutional  provision,  possibly  it  would  be  objectionable. 

But  when  that  amendment  is  incidentally  effected  by  an  act  which 
has  for  its  purpose  the  complete  reorganization  of  the  state  govern¬ 
ment,  such  as  is  done  by  the  Civil  Administrative  Code,  doubtless 
this  act  would  not  be  held  to  be  within  the  rule. 

The  Civil  Administrative  Code  suggests  another  point  of  inter¬ 
est  in  drafting  acts  which  affect  to  some  extent  prior  laws.  If  the 
measure  in  question  operates  to  amend  several  acts  rather  than 
only  one,  apparently  the  court  will  be  less  inclined  to  hold  it  within 
the  constitutional  provision.  Whether  the  fact  that  an  act  affects 
a  number  of  law  indicates  a  purpose  separate  and  distinct  from 
amending  any  one  of  them  or  whether  the  court  sirnply  relaxes 
the  rule  in  the  face  of  the  “far  greater  evil”  of  requiring  the  re¬ 
enactment  of  a  large  number  of  laws,  in  several  cases  the  court 
has  refused  to  apply  the  rule  to  acts  of  this  character.^® 


Incorporation  by  reference :  Although  the  contention  has 
been  made  that  the  adoption  of  certain  provisions  of  one  act  into 
another  act  by  a  mere  reference  amounted  to  an  amendment  of 
the  prior  act,  the  court  has  repeatedly  held  otherwise  and  declared 
that  incorporation  by  reference  did  not  violate  the  provision  in 
Article  IV,  Section  13  of  the  Constitution.^® 

The  effect  of  such  reference  is  the  same  as  though  the  statute 
or  provisions  adopted  had  been  incorporated  bodily  into  the  adopt¬ 
ing  statute.  The  reference  may  be  to  a  particular  statute  by  its  title 
or  it  may  be  to  the  law  generally  which  governs  a  particular  subject. 
Both  references  accomplish  the  incorporation  of  the  provisions 
of  the  prior  act  but  with  different  results  as  to  subseciuent  amend¬ 
ments  to  the  adopted  statute.  “An  act  which  adopts  by  reference 

23  People  V  C.  &  W.  I.  R.  R.  Co..  2.5(1  Ill.  3S8  (1912):  People  v.  Van  Bever, 
248  Ill.  136  (1911). 

2®  Culvor  V.  People.  161  111.  89  (1  896)  :  Citv  of  Charleston  v.  .Tohnston.  170 
Ill.  336  (1897)  :  Peoplo  v.  Crosslev,  261  Ill.  78  (1913)  ;  People  v.  Stitt,  280  Ill. 
553(  1917):  Zeman  v.  Dolan,  279  Ill.  295  (1917). 

Inasmuch  as  this  constitutional  provision  forbids  the  revival  of  a  law 
by  reference,  it  would  seem  clear  that  a  statute  could  not  adopt  by  ref^i^enoe 
statutory  provisions  which  had  been  repealed  before  the  adoption,  or,  if  pro¬ 
visions  were  amended  before  the  enactment  of  the  adoptine-  statute,  the  pro¬ 
visions  as  thev  were  before  amendment.  And  yet  in  People  v.  Glassco.  203 
Ill.  353  (1903):  such  an  adoption  was  sustained  bv  the  Supreme  Court.  Sec¬ 
tions  24  and  25  of  the  Parm  Drainapre  Act  of  1885  were  amended  by  act  an- 
proved  May  10.  1901.  One  da.y  later.  May  11.  1901  an  act  was  approved  whioh 
incorporated  these  sections  24  and  25  by  reference.  It  is  quite  apparent  from 
the  lang'uag’e  that  the  leg-islature  in  passing-  the  adopting-  act  inteoried  the 
reference  to  the  origrinal  sections  and  not  to  the  sections  as  amended.  The  court 
sustains  the  reference  to  the  orig-inal  sections  but  the  opinion  is  devote^t  to 
ascertaining  the  legislative  intent  and  apparently  the  power  of  the  les-isla- 
ture  in  this  respect  is  not  considered.  This  case.  has.  however  been  cited  for 
the  proposition  that  the  “the  provisions  of  a  repealed  act  may  be  adopted,  (bv 
reference)  with  the  sa,me  effect  as  if  it  was  in  force.”  See  Section  405.  Lewis’ 
Sutherland  Statutory  Construction. 


78 


the  whole  or  a  portion  of  another  statute,  means  the  law  as  existing 
at  the  time  of  adoption  and  does  not  include  subsequent  additions 
or  modifications  of  the  statute  so  adopted,  unless  it  does  so  by 
express  or  strongly  implied  intent.  This  rule  seems  to  be  strictly 
adhered  to,  where  the  prior  act  is  particularly  referred  to  in  the 
adopting  statute  by  its  title.  Where,  however,  the  adopting  stat¬ 
ute  makes  no  reference  to  any  particular  act  by  its  title  or  other¬ 
wise,  but  refers  to  the  general  law  regulating  the  subject  in  hand, 
the  reference  will  be  regarded  as  including,  not  only  the  law  in 
force  at  the  date  of  the  adopting  act,  but  also  the  law  in  force 
when  action  is  taken,  or  proceedings  are  resorted  to.”“' 

If  it  is  desired  to  include  future  amendments  to  the  adopted 
statute,  the  reference  must  be  general  or  some  words  must  be 
added  to  the  particular  reference  to  disclose  that  intent.  Although 
there  is  no  Illinois  decision  on  this  point,  it  has  been  held  generally 
elsewhere  that  the  repeal  of  a  statute  adopted  by  a  particular  refer¬ 
ence  would  not  affect  the  operation  of  that  statute  as  a  part  of  the 
adopting  statute. Since  a  general  reference  includes  all  additions 
and  modifications  and  refers  to  the  law  at  the  time  when  the  rule 
is  invoked,  it  should  follow  logically  that  a  repeal  of  the  statutory 
provisions  adopted  would  repeal  them  as  a  part  of  the  adopting 
statute,  but  this  precise  point  does  not  seem  to  have  been  passed 
upon.  In  the  case  of  adoption  by  a  particular  reference  with  words 
indicating  an  intent  to  include  subsequent  amendments,  it  is  diffi¬ 
cult  to  say  what  effect  a  repeal  of  the  adopted  provisions  would 
have.  Probably  it  would  not  withdraw  those  provisions  from  the 
adopting  statute  since,  the  reference  being  to  a  particular  act  the 
additional  language  would  seem  to  go  only  to  the  extent  of  includ¬ 
ing  subsequent  changes  but  not  a  repeal. 

Legislation  by  reference  has  been  the  subject  of  some  criticism. 
For  one  thing,  two  or  more  acts  dealing  with  different  subjects 
must  be  consulted  in  order  to  ascertain  a  legal  situation.  More 
than  that,  frequently  the  adopted  provisions  are  not  wholly  applic¬ 
able  to  the  adopting  statute.  This  may  be  easily  overlooked  in 
drafting  the  adopting  act  and  then  a  judicial  question  is  presented 
as  to  what  extent  the  provisions  are  incorporated.  If,  however, 
the  bill-drafter  makes  the  necessary  modifications,  the  reader  must 
apply  the  modifications  to  the  adopted  provisions  and  then  apply 
both  to  the  adopting  act.  There  is  still  another  difficulty.  If  the 
reference  is  general,  amendments  may  be  made  to  the  adopted  pro¬ 
visions  without  regard  to  their  effect  on  the  adopting  statute.  If 
the  reference  is  particular,  and  amendments  are  made  to  the  pro¬ 
visions  adopted,  the  result  is  that  the  provisions  are  left  in  two 
forms ;  one,  in  the  original  for  the  purposes  of  the  adopting  act ; 
and  two,  as  amended,  for  the  purposes  of  the  statute  from  which 
they  were  adopted.  If  it  should  be  desired  to  keep  these  provisions 
uniform  both  in  the  statute  where  they  occurred  and  in  other 

-  ,  1 

27  Culver  V.  People,  161  Ill.  89  (1896). 

2s  Lewis’  Sutherland  Statutory  Construction  Sec.  405, 


79 


statutes  which  had  adopted  them  by  particular  reference,  it  would 
be  difficult  to  locate  and  amend  the  adopting  acts. 

On  the  other  hand,  there  are  a  number  of  advantages  in  legis¬ 
lation  by  reference.  It  tends  to  reduce  the  bulk  of  legislation.  If 
every  detail  concerning  elections  had  to  be  repeated  in  connection 
with  every  vote,  if  every  act  providing  a  tax  levy  had  to  contain 
the  revenue  act,  the  statute  book  would  run  to  inordinate  length. 
More  than  that,  each  act  would  introduce  varying  details  and 
minor  modifications  as  to  similar  provisions  that  would  render 
the  law  almost  impossible  of  administration.  Within  certain 
bounds,  legislation  by  reference  is  proper  and  useful ;  carried  be¬ 
yond  those  limits,  it  can  justify  all  the  criticism  it  has  had.  The 
diflerent  efifects  of  general  and  particular  references  has  been  sug¬ 
gested  together  with  the  advantages  and  disadvantages  of  each. 
Probably  less  difficulty  will  be  occasioned  and  fewer  unforeseen 
situations  result  if  the  reference  is  made  to  the  law  generally  on  a 
particular  subject. 


Acts  expressly  amendatory:-®.  .The  constitutional  provision  re^ 
quires  that  an  amended  section  or  act  be  set  out  at  length,  but  it  does 
not  require  the  section  or  act  to  be  also  set  forth  in  its  original  form  be¬ 
fore  amendment. It  is  therefore  sufficient  to  provide  that  “Section 
10  of  (naming  the  act)  is  amended  to  read  as  follows,”  and  this 
form  is  generally  used.  In  repealing  a  statute  or  section  of  a  statute 
it  is  not  necessary  to  set  out  at  length  the  statute  or  section  repealed. 

A  difficulty  presents  itself  in  the  case  of  amendments  to  acts 
previously  amended  and  also  in  the  case  of  amendments  to  void  and 
repealed  statutes.  Technically  when  a  section  is  amended  and  re¬ 
enacted  “so  as  to  read  as  follows,”  the  original  section  is  repealed  and 
its  existence  ended. If  the  original  section  is  no  longer  in  exist¬ 
ence  can  effect  be  given  to  an  act  purporting  to  amend  the  original 
section  rather  than  the  section  which  has  replaced  it?  The  view 
originally  held  in  Illinois  was  that  such  an  amendatory  act  was  in¬ 
valid.®’^ 


See  Chapter  on  Forms,  subheading-  Amendatory  bills. 

3"  People  V.  Wright.  70  Ill.  388  (1873)  ;  City  of  Marion  v.  Campbell,  266  Ill. 
256  (1915)  ;  Manchester  v.  People.  178  Ill.  285  (1899). 

Freitag  v.  Union  Stock  Yards,  262  Ill.  551  (1914).  See  chapter  on  Forms, 
subheading  Repeal. 

22  “The  amendatory  act  declared  that  the  statute  should  be  amended  to  read 
as  therein  proyided,  and  this  operated  to  repeal  the  original  section  and  to  sub¬ 
stitute  the  amendatory  section.”  Palmer  v.  City  of  Danville,  166  Ill.  42  (1897)  : 
see  also  People  v.  Young.  38  Ill.  490  (1865)  ;  L.  &  N.  R.  R.  Co.  v.  City  of  East 
St.  Louis.  134  Ill.  656  (1890). 

22  L.  &  N.  R.  R.  Co.  V.  City  of  East  St.  Louis,  134  Ill.  656  (1890);  Kepley 
V.  People.  123  Ill.  367  (1888). 

However,  in  an  early  case.  School  Directors  v.  School  Directors.  73  Ill. 
249  (1874);  the  court  sustained  an  amendatory  act  of  1865  which  purported 
to  amend  an  act  of  1861.  The  act  sought  to  be  amended  was  an  earlier  statute, 
several  sections  of  which  were  amended  in  1861.  The  court  says:  “Here  we 
have  a,  law  possessing  all  the  requisites  of  a  valid  statute,  passed  by  the  Gen¬ 
eral  Assembly,  containing  clear  requirements  capable  of  being  carried  into 
effect  in  connection  with  the  general  school  law.  and  we  have  no  right,  simply 
because  there  is  a  mistaken  reference  to  a  previous  statute  to  defeat  that 
will.”  This  reasoning  of  the  court  shows  an  inclination  to  waive  technicalities 
in  order  to  effectuate  the  legislative  intention. 


80 


In  a  later  case,  however,  the  court  squarely  abrogates  the  former 
rule  and  announces  the  rule  to  be  that  “where  the  amendment  is  con¬ 
sidered  as  a  continuance  of  so  much  of  the  law  as  is  left  unchanged 
in  form  or  substance,  or  as  having  taken  the  place  of  the  original 
enactment  and  so  incorporated  therein,  for  all  purposes,  including 
amendment,  a  subsequent  statute  purporting  further  to  amend  the 
original  act  is  to  be  construed  in  accordance  with  the  intent  of  the 
legislature,  as  operating  on  the  prior  amendment,  and  effect  will  be 
given  to  it.”®'^  This  is  now  the  customary  form  of  an  amendatory  act, 
i.  e.  to  amend  the  original  sections  without  regard  to  prior  amend¬ 
ments.  The  reference  should  be  to  the  original  act,  naming  it,  “as 
amended,”  as  a  recognition  of  prior  amendments,  although  it  will  be 
noticed  that  reference  in  the  amendatory  act  in  the  case  last  mentioned 
did  not  contain  these  words.  It  is  unnecessary  and  cumbersome, 
however,  to  name  all  of  the  amendatory  acts  as  is  sometimes  done. 
Section  1  of  an  act  to  amend  section  12  of  the  Fees  and  Salaries  Act, 
is  as  follows : 

“Section  I.  Be  it  enacted,  etc.:  That  section  12  of  an  Act  entitled, 
‘An  Act  concerning  fees  and  salaries  and  to  classify  the  several  counties  in 
this  state  with  reference  thereto,’  approved  March  29,  1872,  in  force  July  1, 
1872,  title  as  amended  by  an  Act  approved  March  26,  1874,  in  force  July  1, 
1874,  as  amended  by  an  act  approved  April  8,  1875,  in  force  July  1,  1875,  as 
amended  by  an  Act  approved  May  21,  1877,  in  force  July  1,  1877;  be,  and 
the  same  is  hereby  amended  so  as  to  read  as  follows:”'*® 

The  courts  of  the  different  states  have  not  been  in  accord  in 
passing  upon  acts  which  amended  repealed  or  void  statutes.  The 
early  view  and  the  one  held  in  Illinois  was  that  laws  which  were  not 
in  existence  could  not  be  amended;  therefore  a  repealed  act,  which 
had  ceased  to  exist  as  law,  and  a  void  act  which  legally  never  existed, 
were  not  subject  to  amendment.”®  The  more  recent  view  in  many 
jurisdictions  ignores  the  technical  objection  to  such  acts  and  gives 
effect,  when  possible,  to  the  wish  of  the  legislature.  There  have  been 
but  few  recent  cases  in  Illinois  touching  on  this  question. 

The  court,  quite  evidently,  does  not  approve  of  amendments  to 
repealed  or  void  laws  but  is  willing  to  go  to  some  length  to  accomplish 
the  legislative  intent.  In  an  early  case  the  court  said  emphatically, 
“It  is,  of  course,  true  that  a  void  law  cannot  be  amended.”®^  But 
in  that  case  the  court  was  able  to  sustain  the  amendatory  act  in  ques¬ 
tion  on  the  ground  that  the  principal  act  was  not  void  but  merely 
inoperative  by  reason  of  the  failure  of  the  electors  of  any  county  to 
adopt  its  provisions  within  the  period  designated  by  the  act.  How¬ 
ever,  in  a  later  case  the  court  says,  “The  rule  is  .  .  .  that  even  though 
an  amendatory  act  purports  to  amend  a  repealed  statute,  if  the  in¬ 
tent  of  the  legislature  is  clear  and  unmistakable  this  intent  must  gov¬ 
ern,  and  the  statute  will  be  held  to  be  enacted  notwithstanding  the 
mistake  of  reference  to  a  statute  theretofore  repealed.”®®  The  rule 

Villag’e  of  Melrose  Park  v.  Dunnebecke,  210  Ill.  422  (1904). 

Laws  1919,  p.  560. 

See  Lewis,  Sutherland,  Statutory  Construction,  Sec.  23.3. 

People  V.  Onahan,  170  Ill.  449  (1897). 

38  People  V.  Morrell,  234  Ill.  47  (1908);  see  also  Patton  v.  People,  229  Ill.  512 
(1907). 


SI 


laid  down  is  ap])lied  to  sustain  an  amendatory  act  of  ;1907  to  section 
15a  of  the  farm  drainage  law,  that  section  having  been  repealed  by 
an  act  of  1901. 

By  the  same  reasoning,  it  would  seem  that  an  unconstitutional 
law  might  be  amended  but  apparently  this  (piestion  has  not  been 
presented  to  the  court.  .  In  one  of  the  cases  which  consider  amend¬ 
ments  to  repealed  laws  the  court  quotes  a])})rovingly  the  following 
statement:  “The  decided  weight  of  authority  and  the  better  opinion 
is,  that  an  amendatory  act  is  not  invalid,  though  it  purport  to  amend 
a  statute  which  had  ])reviously  been  amended  or  for  any  reason  been 
held  invalid.”''’^  Probably  the  only  occasion  for  amending  an  uncon¬ 
stitutional  law  would  be  the  removal  of  the  constitutional  defect. 

Although  acts  amending  void  or  rej^ealed  law\s  might  he  given 
effect  by  the  court,  such  legislation  is  to  be  condemned.  Indeed  the 
court  has  said  that  they  can  be  sustained  only  because  “the  rule  for 
the  guidance  of  the  court  is  to  ascertain  the  intention  of  the  legisla¬ 
ture  and  not  their  mistakes,  either  as  to  law  or  fact.”^^  Amendments 
to  original  sections  rather  than  to  prior  amendments  are  sustained  on 
a  different  ground  viz.  that  the  prior  amendments  have  merged  into 
and  become  part  of  the  original  act  and  therefore  the  subsequent 
amendment  should  properly  refer  to  the  original  act. 

Attention  should  be  called  to  a  number  of  other  matters  con- 
cerning  amendatory  bills.  An  amendment  of  a  section  “to  read  as 
follows”  operates  as  a  repeal  of  the  portions  of  the  original  section 
omitted.  As  to  the  portion  unchanged,  in  form  or  substance,  the 
amendatory  act  is  a  mere  continuation  of  the  original  actd^  Thus 
the  Illinois  corporation  act  of  1872  permitted  the  consolidation  of 
corporations  with  certain  restrictions,  one  of  which  was  that  “no 
more  than  two  corporations  nozv  existing  shall  be  consolidated  into 
one  under  the  provisions  hereof.”  The  section  containing  this  pro¬ 
vision  was  amended  and  re-enacted  in  1889  but  the  words  quoted 
were  not  changed.  It  was  held  that  the  words  “now  existing” 
in  the  amended  section  related  to  1872  and  not  to  1889.^^  The 
amended  portion  or  new  matter  is  effective  from  the  date  of  the 
passage  of  the  amendment.  An  amended  statute,  however,  is  con¬ 
strued  as  regards  any  action  subsequent  to  the  amendment,  just 
as  though  it  had  been  enacted  originally  in  its  amended  form.^^ 

The  General  Assembly  not  infrequently  passes  two  or  more 
bills  amending  the  same  section  or  sections  of  a  prior  act.  In 
1917  two  bills  were  passed  amending  sections  of  the  Workmen’s 
Compensation  Act.^^  The  next  General  Assembly  passed  three  acts 
amending  section  G1  of  the  County  Act.^^  Of  course,  the  measure 
last  enacted  has  the  effect  of  repealing  all  prior  amendments  of  the 


Patton  V.  People.  229  Ill.  512  (1907). 

Pewis’  STutherlanct.  Statutory  Construction,  Sec.  233,  quoted  in  Patton  v. 
People,  229  Ill.  512  (1907). 

People  V.  Zito.  237  Ill.  434  (1909). 

•‘2  Barrows  v.  People’s  Gas,  Light  &  Coke  Co.,  75  Fed.  794  (1895). 

Holbrook  V.  Nichol,  36  Ill.  161  (1864). 

■‘'‘Laws  1917,  pp.  490,  505. 

45  Laws  1919,  pp.  370,  381,  392. 


82 


same  section  or  sections  whether  enacted  at  the  same  session  or 
by  an  earlier  General  Assembly d® 

Under  the  Senate  and  House  rules  “it  is  made  the  duty  of 
any  member  introducing  a  bill  proposing  an  amendment  to  any 
statute  law  of  this  State  to  underscore  the  word  or  words,  compris¬ 
ing  the  proposed  amendment,  and  no  bill^  shall  be  printed  until 
such  word  or  words  are  underscored.  All  parts  of  bills  which  are 
underscored  shall  be  printed  in  italics”.  The  evident  purpose  is 
to  acquaint  the  reader  with  the  changes  in  the  section  as  proposed. 
The  difficulty  is  that  this  expedient  goes  only  half  way.  Fre¬ 
quently  amendments  to  legislation  are  accomplished  by  omission 
rather  than  by  adding  new  parts.  And  if  a  substitution  of  new 
matter  for  old  is  made,  it  is  impossible  to  know  exactl}^  the  extent 
of  the  alteration.  Some  law-making  bodies  adopt  the  further  ex¬ 
pedient  of  printing  omitted  portions  with -a  line  drawn  through 
or  enclosed  in  brackets.  Substitutions  can  be  shown  by  printing 
old  matter  crossed  with  a  line  above  the  substituted  portion  which 
would  be  italicized.  However,  the  objection  can  be  made  that  a  bill 
printed  in  this,  manner  is  somewhat  more  difficult  to  read. 


The  passage  of  two  or  more  bills  at  one  session  amending  the  same  act 
is  apt  to  cause  some  difficulties.  The  later  act  repeals  the  earlier  only  as 

to  the  sections  which  are  set  out  and  re-enacted  in  the  second  measure.  If  the 

first  amending  act  amends  sections  not  contained  in  the  subsequent  measure  or 
adds  new  sections,  these  sections  are  not  expressly  repealed.  Thus  the  House 
bill  amending  the  workmen’s  compensation  act  adds  a  new  section  numbered 
3^/2.  The  senate  bill,  approved  later,  makes  no  mention  of  section  It. 

therefore,  was  not  repealed  by  the  Senate  bill  but  became  effective  July  1 

following  its  passage.  But  an  inspection  of  section  3^^  shows  that  it  is  not 
in  harmony  with  the  Senate  bill  that  became  law.  In  its  first  sentence  it  says, 
“If  the  plaintiff  in  any  action  mentioned  in  section  3  shall  .  .  .  allege  that 

the  employer  has  filed  notice  of  his  election  not  to  provide  and  pay  compensa¬ 
tion  according  to  the  workmen’s  compensation  act  .  .  But  section  3  as 

last  amended  applies  the  provisions  of  the  act  automatically  and  without  elec¬ 
tion  to  the  employers  named  in  that  section.  Is  section  3i/4  repealed  by  im¬ 
plication  or  can  it  be  given  effect  as  a  procedural  provision  applying  to  causes 
of  action  accrued  before  section  3,  as  last  amended,  became  effective? 


83 


ESSENTIAL  POINTS  IN  BILL  DRAFTING. 


Each  proposed  measure  has  its  own  problems  and  special  fea¬ 
tures.  But  there  are  general  considerations  applicable  to  bill-drafting 
which  must  constantly  be  borne  in  mind  by  the  draftsman.  The  im¬ 
portance  of  these  points  warrants  a  brief  mention.  If  the  draftsman, 
in  constructing  a  legislative  measure,  has  worked  with  the  following 
points  in  mind,  his  bill  at  least  can  become  an  effective  law  even 
though  imperfect  in  form. 

Is  the  object  of  the  proposed  measure  within  the  power  of  the 
General  Assembly  to  enact  ? 

Do  the  methods  by  which  the  object  is  sought  to  be  accomplished 
conform  to  constitutional  requirements? 

What  is  the  present  state  of  the  law  on  that  subject? 

Can  the  desired  result  be  effected  by  an  amendment  to  some  exist¬ 
ing  act  ? 

What  existing  laws  will  be  affected  by  the  proposed  legislation? 

Is  the  proposed  measure  limited  to  one  subject  and  purpose? 

Does  the  title  adequately  express  that  subject? 

If  the  bill  is  amendatory  in  form,  does  it  correctly  refer  to  the 
act  amended? 

Do  the  sections  amended  in  an  amendatory  bill  work  an  amend¬ 
ment  in  effect  in  other  sections  not  set  forth? 

Do  the  amendments  made  by  an  amendatory  bill,  necessitate  an 
amendment  to  the  title  of  the  original  act? 

Is  the  enacting  clause  in  proper  form? 

Does  the  measure  accomplish  the  legislative  purpose? 

If  the  act  is  amendatory  is  the  new  matter  in  the  amended  sections 
underscored  as  required  by  the  rules  of  both  Houses  of  the  General 
Assembly  ? 


APPENDIX  I.  FORMS. 


A  number  of  forms  for  titles  and  various  provisions  have  been  col¬ 
lected  in  this  chapter  for  reference  purposes.  It  is  not  intended  to 
suggest  that  the  examples  given  are  perfect  or  incapable  of  improve¬ 
ment.  Some  have  been  taken  without  change  from  Illinois  statutes. 
In  other  cases,  the  form  given  is  thought  to  be  an  improvement. 

Reforms  in  statutory  form  are  necessarily  gradual.  The  bill-drafter 
is  not  always  free  to  use  the  phraseology  he  thinks  best  adapted  to  the 
purpose.  Always  he  must  reckon  with  the  power  of  custom  firmly 
established.  This  seems  particularly  true  in  the  case  of  amendatory  • 
bills.  There  is  an  established  phraseology  for  the  titles  and  enacting 
parts  of  such  bills  which  seems  unne.cessarily  cumbersome.  For  ex¬ 
ample,  the  usual  title  for  a  bill  which  adds  sections  to  a  prior  act  has 
been :  ‘‘A  Bill  for  an  Act  to  amend  an  Act  entitled,  ‘An  Act  to  revise 
the  law  in  relation  to  counties,’  approved  and  in  force  March  31,  1874, 
as  subsequently  amended,  by  adding  two  new  sections,  to  be  known  as 
Sections  162  and  163.”  It  may  be  worth  while  to  point  out  in  detail 
some  possible  changes  which  simplify  this  language  without  weakening 
its  effect. 

1.  Omit*  “new sections  added  to  a  statute  are  necessarily  new. 

2.  Omit  “subsequently” ;  any  amendments  must  have  been  subse¬ 
quent  to  its  passage. 

3.  In  place  of  the  words,  “by  adding  two  sections,  to  be  known 
as  Sections  162  and  163”  insert,  “by  adding  Sections  162  and  163.” 
The  last  expression  means  exactly  the  same  as  the  first. 

4.  Since  the  addition  of  sections  necessarily  amends  an  act,  in¬ 
stead  of  the  words  “An  act  to  amend  an  Act  entitled  ‘an  Act  etc.,’ 
by  adding  etc.,”  say  “An  Act  to  add  Sections  162  and  163  to  an  Act  en¬ 
titled,  ‘An  Act  etc.’  ” 

5.  Omit  the  words  “an  Act  entitled.”  Refer  to  the  act  amended 
directly  by  its  title  in  place  of  making  the  reference  to  an  act  “en¬ 
titled  ‘An  Act  etc.’  ”  The  title  with  this  phrase  omitted  becomes : 
“A  bill  for  an  xA.ct  to  add  Sections  162  and  163  to  ‘An  Act  to  revise  the 
law  in  relation  to  counties,’  approved  and  in  force  March  31,  1874,  as 
amended.” 

Some  of  the  suggested  changes  may  seem  radical  departures  from 
the  usual  phraseology  and  for  that  reason  in  the  forms  for  amendatory 
bills,  alternative  forms  are  occasionally  given  to  accomplish  the  same 
result.  The  examples  are,  after  all,  merely  suggestive,  to  be  im¬ 
proved  rather  than  to  be  followed.  Uniformity  is  undoubtedly  desir¬ 
able  but  it  should  not  be  a  uniformity  of  useless  and  awkward  phrase¬ 
ology. 


Titles  to  Independent  Bills. 


A  BILL 

For  an  Act  to  establish  the  Illinois  State  Police. 

A  BILL 

« 

For  an  Act  to  regulate  the  exhibition  of  motion  pictures. 

A  BILL 

For  an  Act  in  relation  to  corporations  for  pecuniary  profit. 

A  BILL 

For  an  Act  to  revise  the  law  in  relation  to  deadly  weapons. 


Amendatory  Bills. 

% 

1.  Bill  to  amend  sections, — two  forms. 

A  BILL 

For  an  Act  to  amend  Sections  160  and  161  of  “An  Act  to  revise 
the  law  in  relation  to  counties,”  approved  and  in  force  March  31,  1874, 
as  amended. 

Section  1.  Be  it  enacted  by  the  People  of  the  State  of  Illinois, 
represented  in  the  General  Assembly:  Sections  160  and  161  of  “An 
Act  to  revise  the  law  in  relation  to  counties,”  approved  and  in  force 
’March  31,  1874,  as  amended,  are  amended  to  read  as  follows: 

Sec.  160.  No  territory  transferred  ... 

Sec.  161.  The  county  board  .  .  . 

A  BILL 

For  an  Act  to  amend  Sections  160  and  161  of  an  Act  entitled^' 
“An  Act  to  revise  the  law  in  relation  to  counties,”  approved  and  in 
force  March  31,  1874,  as  amended. 

Section  1.  Be  it  enacted  by  the  People  of  the  State  of  Illinois, 
represented  in  the  General  Assembly:  Sections  160  and  161  of  an  Act 
entitled  “An  Act  to  revise  the  law  in  relation  to  counties,”  approved 
and  in  force  March  31,  1874,  as  amended,  are  amended  to  read  as  fol- 
.  lows : 

Sec.  160.  No  territory  transferred  .  .  . 

( 

Sec.  161.  The  county  board  .  .  . 


The  second  form  retains  the  phrase  “An  Act  Entitled.”  These  words 
have  been  omitted  in  the  other  forms  for  amendatory  bills. 


2.  Bill  to  add  sections, — tzvo  forms. 

A  BILL 

For  an  Act  to  add  Sections  7  and  8  to  the  Game  and  Fish  Code 
of  Illinois^*  approved  June  24,  1919,  in  force  July  1,  1919. 

Section  1.  Be  it  enacted  by  the  People  of  the  State  of  Illinois, 
represented  in  the  General  Assembly:  Sections  7  and  8  are  added  to 
the  Game  and  Fish  Code  of  Illinois,  approved  June  24,  1919,  in  force 
July  1,  1919,  these  sections  to  read  as  follows: 

Sec.  7.  It  shall  be  the  duty  .  .  . 

Sec.  8.  Whoever,  hunts,  takes  or  destroys  .  .  . 

A  BILL 

For  an  Act  to  amend  the  Game  and  Fish  Code  of  Illinois,  ap¬ 
proved  June  24,  1919,  in  force  July  1,  1919  by  adding  Sections  7  and 
8  thereto. 

Section  1.  Be  it  enacted  by  the  People  of  the  State  of  Illinois, 
represented  in  the  General  Assemby:  The  Game  and  Fish  Code  of 
Illinois,  approved  June  24,  1919,  in  force  July  1,  1919,  is  amended  by 
adding  thereto  Sections  7  and  8,  to  read  as  follows: 

Sec.  7.  It  shall  be  the  duty  .  .  . 

Sec.  8.  Whoever  hunts,  takes  or  destroys  .  .  . 

3.  Bill  to  repeal  sections. 

A  BILL 

For  an  Act  to  repeal  Sections  168,  169  and  170  of  “An  Act  to 
revise  the  law  in  relation  to  roads  and  bridges,”  approved  June  27, 
1913,  in  force  July  1,  1913,  as  amended. 

Section  1.  Be  it  enacted  by  the  People  of  the  State  of  Illinois, 
represented  in  the  General  Assembly:  Sections  168,  169  and  170  of 
“An  Act  to  revise  the  law  in  relation  to  roads  and  bridges,”  approved 
June  27,  1913,  in  force  July  1,  1913,  as  amended,  are  repealed. 

4.  Bill  to  amend  sections  and  add  sections. 

A  BILL 

For  an  Act  to  am.end  Sections  161  and  162  of  “An  Act  to  revise 
the  law  in  relation  to  roads  and  bridges,”  approved  June  27,  1913,  in 
force  July  1,  1913,  as  amended,  and  to  add  Section  183  thereto. 

Section  1.  Be  it  enacted  by  the  People  of  the  State  of  Illinois, 
represented  in  the  General  Assembly:  Sections  161  and  162  of  “An 
Act  to  revise  the  law  in  relation  to  roads  and  bridges,”  approved  June 
27,  1913,  in  force  July  1,  1913,  as  amended,  are  amended,  and  Section 
182  is  added  thereto,  the  amended  and  additional  sections  to  read  as 
follows : 

Sec.  161.  The  commissioner  of  highways  .  .  . 

Sec.  162.  In  all  counties  .  .  . 

Sec.  183.  No  contract  so  made  .... 

In  this  instance,  the  act  amended  provides  a  short  title  by  which  it  may 
be  cited  and  this  short  title  is  used  for  the  reference. 


87 


5.  Bill  to  amend  some  seetions  and  repeal  others. 

A  BILL 

For  an  Act  to  amend  Sections  Hil  and  162,  and  to  repeal  Section 
183  of  “An  Act  to  revise  the  law  in  relation  to  roads  and  bridges,” 
approved  June  27,  1913,  in  force  July  1,  1913,  as  amended. 

Section  1.  Be  it  enacted  by  the  People  of  the  State  of  Illinois, 
represented  in  the  General  Assembly:  Sections  161  and  162  of  “An 
Act  to  revise  the  law  in  relation  to  roads  and  bridges,”  approved  June 
27,  1913,  in  force  July  1,  1913,  as  amended,  are  amended  to  read  as 
follows : 

Sec.  161.  The  Commissioner  of  highways  .  .  . 

Sec.  162.  In  all  counties  .  .  . 

Section  2.  Section  1*83  of  said  Act  is  repealed. 

6.  Bill  to  amend  sections  and  title.^^'^ 

m 

A  BILL 

t 

For  an  Act  to  amend  Sections  2  and  3  and  the  title  of  “An  Act 
to  revise  the  law  in  relation  to  roads  and  bridges,  approved  June  27, 
1913,  in  force  July  1,  1913,  as  amended. 

Section  1.  Be  it  enacted  by  the  People  of  the  State  of  Illinois, 
represented  in  the  General  Assembly :  Sections  2  and  3  of  “An  Act 
to  revise  the  law  in  relation  to  roads  and  bridges,”  approved  June  27, 
1913  in  force  July  1,  1913,  as  amended,  are  amended  to  read  as  fol¬ 
lows  : 

Sec.  2.  When  any  part  .  .  . 

Sec.  3.  If  it  shall  appear  .  .  . 

Section  2.  The  title  of  said  Act  is  amended  to  read  as  follows: 

“An  Act  in  relation  to  roads  and  bridges.” 


7.  Bill  to  amend  sections  and  title  and  add  and  repeal  sections. 

A  BILL 

For  an  Act  to  amend  Sections  6  and  7  and  the  title  of  “An  Act  to 
revise  the  law  in  relation  to  roads  and  bridges,”  approved  June  27, 
1913,  in  force  July  1,  1913,  as  amended,  to  add  Sections  8  and  9 
thereto,  and  to  repeal  Sections  3  and  4  thereof. 

Section  1.  Be  it  enacted  by  the  People  of  the  State  of  Illinois, 
represented  in  the  General  Assembly :  Sections  6  and  7  of  “An  Act 
to  revise  the  law  in  relation  to  roads  and  bridges,”  approved  June  27, 
1913,  in  force  July  1,  1913,  as  amended,  are  amended  and  Sections  S 

When  an  amendatory  act  amends  the  title  of  the  original  act,  it  prob¬ 
ably  would  be  preferable  to  refer  to  the  original  act  by  its  title  rather  than 
a  short  title. 


88 


and  0,  are  added  thereto,  the  amended  and  additional  sections  to  read 
as  follows : 

Sec.  G.  The  terms  of  the  .  .  . 

Sec.  7.  On  the  first  Monday.  .  .  . 

Sec.  8.  The  nomination  .  .  . 

Sec.  9.  The  additional  judges  .  .  . 

Section  2.  The  title  of  said  Act  is  amended  to  read  as  follows: 
“An  Act  in  relation  to  roads  and  bridges.” 

Section  3.  Sections  3  and  4  of  said  Act  are  repealed. 


Amendments  to  bill  after  introduction. 

1.  AMENDMENT  TO  PRINTED  SENATE  BILL  NO.  351. 

Amendment  No.  1.  Amend  printed  Senate  Bill  No.  351,®®  on 
page  3,  section  2,  line  51,  by  striking  the  words  “twenty  cents,”  and 
inserting  in  lieu  thereof  the  words  “seventy-five  cents.” 

2.  AMENDMENTS  TO  PRINTED  SENATE  BILL  NO.  117  IN  HOUSE. 
Amendment  No.  1.  Amend  the  title  of  printed  Senate  Bill  No. 

117  in  House  to  read  as  follows: 

“A  bill  for  an  y\ct  for  the  relief  of  Fred  H.  Gillett  and  Thomas 
J.  Sheridan,  and  making  appropriations  therefor.”®^ 

Amendment  No.  2.  Amend  printed  Senate  Bill  No.  117  in 
House  by  adding  thereto  Sections  3  and  4,  to  read  as  follows : 

“Sec.  3.  The  sum  of  $2,000  is  appropriated  .  .  . 

Sec.  4.  The  Auditor  of  Public  Accounts  ...” 


Conference  Report. 

REPORT  OF  COMMITTEE  OF  CONFERENCE  ON  HOUSE  BILL  NO.  754. 

JUNE  19,  1919. 

To  the  Honorable: 

The  President  of  the  Senate,  and 

The  Speaker  of  the  House  of  Representatives. 

We,  the  undersigned  committee  of  conference,  appointed  to  con¬ 
sider  the  differences  between  the  two  Blouses  in  relation  to  the 
Senate  Amendments  to  Plouse  Bill  No.  754,  “A  bill  for  an  Act,  etc,” 

It  is  customary  for  each  amendment  to  name  the  bill  amended  even  though 
the  amendments  are  given  a  general  title  which  indicates  the  bill  amended. 
When  there  are  many  amendments  to  one  bill,  this  repitition  becomes  tire¬ 
some.  A  more  desirable  form  of  amendment  would  be : 

“On  page  3,  section  2.  line  51,  strike  the  words  ‘twenty  cents,’  and 
insert  in  lieu  thereof  the  words  ‘seventy-five  cents.’  ’’ 

The  amendments  recommended  in  the  conference  report  are  in  this  second 
form. 

If  the  change  made  in  the  title  is  small,  the  amendment  may  strike,  insert 
or  add  woixls  in  place  of  setting  out  in  full  the  amended  title.  'The  same 
thing  is  true  of  amendments  to  the  body  of  a  bill.  If  there  are  a  number  of 
amendments  in  a  comparatively  short  section,  the  most  convenient  form  of 
amendment  may  be  to  set  out  the  amended  section  in  full.  Several  amend¬ 
ments  can  sometimes  be  handled  together  by  striking  a  line  or  several  lines  and 
inserting  new  matter.  In  each  instance  the  form  of  amendment  selected  must 
be  determined  from  a  consideration  of  the  particular  case.  The  bill-drafter 
should  keep  the  amendments  as  short  and  simple  as  possible  and  at  the  same 
time  make  it  easy  for  a  person  comparing  the  bill  and  its  amendments  to  dis¬ 
cover  the  changes  that  have  been  made. 


89 


beg  leave  to  report  that  we  recommend  the  following  as  the  action  to 
be  taken  by  the  Senate  and  the  House  of  Representatives,  respec¬ 
tively  : 

We  recommend  that  the  Senate  recede  from  Senate  Amendments 
Nos.  1,  5,  etc. 

We  further  recommend  that  the  House  of  Representatives  con¬ 
cur  with  the  Senate  in  Senate  Amendments  Nos.  2,  3,  4,  etc. 

We  further  recommend  that  printed  House  Bill  No.  754  in  Senate 
be  amended  as  follows : 

First:  On  page  2,  section  1,  paragraph  4,  line  2,  strike  out 
“twenty  cents”  and  insert  in  lieu  thereof  “fifty  cents.” 

All  of  which  is  respectfully  submitted. 

Dated  this  19th  day  of  June,  1919. 


Committee  on  the  part  of  the  Senate.  Committee  on  the  part  of  the  House 

of  Representatives. 


Provisions  authorizing  hearings,  compelling  obedience  to  subpoenas 

and  extending  immunity. 

Sec.  —  The  Department  may  conduct  investigations  and  hearings, 
subpoena  witnesses,  issue  subpoenas  to  require  the  production  of  books, 
papers,  records  and  documents  which  may  be  needed  as  evidence  of 
any  matter  under  inquiry,  and  may  administer  oaths  and  affirmations. 
In  the  conduct  of  any  investigation  or  hearing,  the  Department  shall 
not  be  bound  by  the  technical  rules  of  evidence,  and  no  informality 
in  the  proceeding  or  in  the  manner  of  taking  testimony  shall  invalidate 
the  decision  or  order  of  the  Department.  Service  of  subpoenas  shall 
be  by  any  sheriff,  constable  or  other  person  of  full  age. 

Sec.  —  If  any  person  who  has  been  properly  served,  refuses  or 
neglects  to  appear  and  testify  or  to  produce  relevant  books,  papers, 
records  or  documents,  the  Department  may  petition  the  circuit  court 
of  the  county  in  which  the  hearing  is  being  held  for  an  order  re¬ 
quiring  the  witness  to  attend  and  testify  or  produce  the  documentary 
evidence.  The  circuit  court  shall  hear  the  petition  and,  if  it  appears 
to  the  court  that  the  witness  should  testify  or  should  produce  the 
documentary  evidence  may  enter  an  order  requiring  the  witness  to 
obey  the  subpoena.  The  court  may  compel  obedience  to  its  order  by 
attachment  proceedings,  as  for  contempt  of  court. 

Sec.  —  No  person  shall  be  excused  from  giving  evidence  in  any 
investigation  or  hearing  ordered  by  the  Department,  upon  the  ground 
that  the  evidence  may  tend  to  incriminate  him  or  subject  him  to  a 
penalty.  But  no  person  shall  be  prosecuted  or  subjected  to  a  penalty 
for  any  transaction  or  matter  concerning  which  he  has  given  evidence 


90 


before  the  Department.  This  immunity  however,  shall  extend  only 
to  a  natural  person,  who  in  obedience  to  a  subpoena,  gives  testimony 
under  oath  or  produces  documentary  evidence  under  oath. 

Sec.  —  Whoever  wilfully  testifies  falsely  to  any  material  fact  at 
any  hearing  or  investigation  is  guilty  of  perjury  and  shall  be  pun¬ 
ished  accordingly. 


Referendum  provision. 

Sec.  —  Subject  to  the  provisions  of  Sections  —  of  this  act,  any 
town  may  levy  an  annual  tax  of  not  to  exceed  three  mills  on  the  dol¬ 
lar  for  the  purpose  of  etc.  This  tax  shall  be  levied  and  collected 
in  the  same  manner  as  other  general  taxes. 

Sec.  —  Upon  the  filing  with  the  town  clerk  of  any  town  of  a 
petition  containing  the  names  of  not  less  than  fifty  legal  voters  of 
the  town  praying  that  the  question  of  levying  this  tax  be  submitted 
to  the  voters,  the  question  shall  be  submitted  at  the  next  regular 
town  election,  if  there  is  one  more  than  twenty  but  less  than  ninety 
days  after  the  filing  of  the  petition.  If  there  is  no  regular  town 
election  within  that  period,  a  special  election  shall  be  called  not  less 
than  thirty  nor  more  than  sixty  days  after  the  petition  has  been 
filed. 

Sec.  —  The  ballots  for  use  in  this  election  shall  be  in  sub¬ 
stantially  the  following  form. 


For  a  tax  levy  of  not  more  than  three  mills  on  the 
dollar  for  the  purpose  of  etc. 

Against  a  tax  levy  of  not  more  than  three  mills  on 
the  dollar  for  the  purpose  of  etc. 

If  a  majority  of  those  voting  on  the  question  of  levying  a  tax  for 
the  purpose  of  etc.,  vote  in  favor  thereof,  an  annual  tax  of  not  to  ex¬ 
ceed  three  mills  on  the  dollar  shall  be  levied  and  collected  for  that 
purpose. 

Penal  provision. 

Sec.  —  Whoever  steals  any  motor  vehicle  of  a  value  greater  than 
fifteen  dollars,  or  buys,  receives  or  conceals  any  such  motor  vehicle 
knowing  that  it  has  been  stolen  and  with  the  intent  to  defraud  the 
owner,  is  guilty  of  a  felony  and  shall  be  fined  in  any  sum  not  ex¬ 
ceeding  five  hundred  dollars  and  imprisoned  not  less  than  two  years 
nor  more  than  fifteen  years. 


91 


Provisions  containing  prohibitions  or  imposing  duties  with  penal¬ 
ties  grouped  in  a  later  section. 

Sec.  —  Every  owner  of  a  vehicle  of  the  first  division  shall,  within 
ten  days  after  acquiring  it,  file  in  the  office,  .  .  . 

Sec.  —  No  motor  vehicle  or  motor  bicycle  shall  be  operated  .  .  . 

Sec.  —  No  person  shall  drive  a  motor  vehicle  or  motor  bicycle 
upon  a  public  highway  in  a  race. 

Sec. — -Whoever  violates  the  provisions  of  this  act  is  guilty  of 
a  misdemeanor  and  shall  be  fined  in  a  sum  not  to  exceed  the  amounts 
set  forth : 

For  a  violation  of  Sections  4,  6,  7  or  8,  one  hundred  dollars. 

For  a  violation  of  Section  5,  twenty-five  dollars. 

Sec.  —  In  case  of  a  continuing  violation  of  any  of  the  provisions 
of  this  act,  each  day’s  continuance  thereof  is  a  separate  ofifense. 


Appropriation  provisions. 

Sec.  —  The  sum  of  $50,000.00  is  appropriated  to  the  Depart¬ 
ment  of  Public  Works  and  Buildings  to  carry  out  the  provisions  of 
this  act. 

Sec.  —  This  appropriation  is  subject  to  the  provisions  of  “An 
Act  in  relation  to  State  Finance,”  approved  June  10,  1919,  in  force 
July  1,  1919. 


Take  effect  clause. 

This  Act  shall  take  effect  on  the  first  day  of*January,  1922. 


Emergency  clause. 

Because  of  an  emergency,  this  Act  shall  take  effect  upon  its 
passage. 


Repeal. 

“An  Act  to  secure  the  enforcement  of  the  law  for  the  prevention 
of  cruelty  to  animals,”  approved  May  25,  1877,  in  force  July  1, 
1877,  as  amended,  is  repealed. 


92 


APPENDIX  II.  BIBLIOGRAPHY. 


A  Legislative  Handbook,  Ashton  R.  Williard;  the  most  useful 
discussion  of  American  legislative  practice,  now  unfortunately  out  of 
print. 

Statute  Lazu  Making,  Chester  Lloyd  Jones;  largely  a  restatement 
of  Williard  and  Coode. 

Legislative  Methods  and  Forms  and  Mechanics  of  Lava  Making, 
Sir  Courtenay  Ilbert ;  two  works  which  constitute  the  most  author¬ 
itative  statement  of  modern  English  legislative  methods.  Of  distinct 
value  in  this  country  on  many  points. 

Practical  Legislation,  Lord  Henry  Thring,  Parliamentary  Coun¬ 
sel  preceding  Ilbert :  discussion  of  composition  and  language  of  acts 
of  Parliament, 

Theory  of  Legislation,  Jeremy  Bentham ;  of  interest  chiefly  as 
the  first  effort  along  scientific  lines  to  formulate  principles  for  legis¬ 
lative  drafting. 

On  Legislative  Expression,  George  Coode;  early  exposition  on 
the  phraseolog}^  of  English  statutes. 

Statute  Lava,  William  Eeilden  Craies;  largely  a  discussion  on 
the  interpretation  of  statutes  with  some  remarks  about  statute  making. 

Statutory  Construction,  J.  G.  Sutherland,  second  edition  by  John 
Lewis ;  the  standard  work  on  construction  of  statutes. 

Constitutional  Limitations,  Thomas  M.  Cooley;  the  standard  work 
on  the  extent  of  the  power  of  American  legislatures. 

Reports  of  the  Special  Committee  on  Legislative  Drafting.  This 
committee  of  the  American  Bar  Association  has  been  engaged  for  a 
number  of  years  in  the  collection  of  data  concerning  style,  language, 
arrangement,  operation,  methods  of  regulation,  remedial  and  en¬ 
forcing  provisions  and  administration.  A  topical  plan  for  a  manual 
for  legislative  drafting  was  prepared  some  time  ago  and  recently  re¬ 
vised.  This  plan  was  an  outline  with  chapter  headings.  Several  of 
these  chapters  were  written,  the  subjects  being,  “Administrative  Regu¬ 
lations”,  “Penalties”,  and  “Provisions  for  Licensing  and  Certifica¬ 
tion”.  The  committee  has  discontinued  the  collection  of  data  and  is 
preparing  a  final  report  on  the  material  already  collected. 

Statute  Lazv  Making  in  lozva.  This  is  the  most  comprehensive  of 
a  number  of  State  publications,  a  list  of  which  follows.  These  are 
mainly  of  value  in  the  particular  State  where  compiled. 

California, 

Legislative  Manual  and  Form  Book. 

Hints  on  Dravaing  Legislative  Bills, 


Indiana, 

iS  Legislative  Bill  Drafting. 

Hints  on  Bill  Drafting. 

Scientific  Lazv-inaking. 


Maryland, 

Scientific  Assistance  in  Lazv  Making. 

North  Dakota, 

Statute  Lazo  Making  zvitli  Suggestions  to  Draftsmen. 

South  Dakota, 

Titles  of  Laws. 


% 


94 


INDEX. 


AMENDATORY  LEGISLATION,  75 
acts  expressly  amendatory,  79,  85 
amendment  by  reference  75 
incorporation  by  reference,  77 
titles,  19,  85 

AMENDMENT  BY  REFERENCE.  75 

AMENDMENT  OF  BILLS,  88 

APPROPRIATION 
form,  91 

mention  of,  in  title,  18 

ARTICLES 

division  of  bill  into,  29 
headings  for,  29 

BIBLIOGRAPHY,  92 

BILL-DRAFTING 
essential  points,  83 
general  scope,  7 

CONFERENCE  REPORT,  FORM,  88 

CONSTITUTIONAL  PROVISIONS 
affecting  bill-drafting,  7,  9,  11 
amendatory  legislation,  75 
emergency,  21 
enacting  clause,  32 
laws  effective  July  1,  21 
salary  of  State  officer,  14 
sidxject,  13 
title,  15 

CONSTRUCTION  STATUTE,  58 

DEFINITIONS,  58 

DETACHED  CLAUSES,  34 

DIRECTORY  PROVISIONS,  53,  57 

EJUSDEM  GENERIS  RULE,  41 

EMERGENCY  CLAUSE,  21,  27,  91 

ENACTING  CLAUSE,  32 
constitutional  provision,  32 
location,  32 

ESSENTIAL  POINTS  IN  BILL-DRAFTING,  83 

EXPEDIENTS,  SELECTION,  7,  9 

EXPRESSIO  UNIUS  RULE,  42 


FORMS,  84 
amendatory  bills,  85 

amendments  to  bills  in  General  Assembly,  88 
conference  report,  88 
provisions 
appropriation,  91 
authorizing  hearings,  etc.,  89 
emergency,  91 
penal,  90,  91 
referendum,  90 
repeal,  91 
take  effect,  91 
titles 

amendatory,  85 
independent,  85 

IMPERATIVE  PROVISIONS,  53,  54 

INCORPORATION  BY  REFERENCE,  77 

INDEFI-NITE  AND  UNCERTAIN  STANDARDS, 
45 

LEGAL  PRINCIPLE,  CONCEPTION,  7 
LEGISLATIVE  POWER,  LIMITATIONS,  7,  9 
LIBERAL  INTERPRETATION  PROVISION,  68 
MANDATORY  PROVISIONS,  53,  57 
“MAY”  AND  “SHALL”,  53 
PARTIAL  INVALIDITY  SECTION,  66 

PENALTIES,  18,  27,  62,  90,  91 
PERMISSIVE  PROVISIONS,  53,  54 

PHRASEOLOGY, '40 
construction  statute,  58 
definitions,  58 
expressio  imius  rule,  42 
indefinite  and  uncertain  standards,  45 
“may”,  “shall”,  53 
penal  provisions,  18,  27,  62,  90,  91 
preciseness-ejusdem  generis,  41 
tense,  40 
use  of 

“and”,  and  “or”,  63 

indirect  expressions,  62 

masculine  and  feminine,  60 

“said”,  “such”,*  “whatsoever”,  etc.,  62 

sample  forms,  64 

singular  and  plural,  60 

synonyms,  61 

“that”  at  beginning  of  section,  61 


95 


INDEX — Concluded. 


PRACTICAL  FACTORS  IN  BILL-DRAFTING, 
70 

act  construed  as  whole,  70 
influence  of  other  acts,  71,  72 
influence  of  common  law,  72 
influence  of  judicial  decisions,  73 
influence  of  extraneous  facts,  71 

PREAMBLES,  30 
form  of,  30 
in  resolutions,  31 
when  proper,  31 

PRECISENESS,  41 
PROVISOS,  37 
PUNCTUATION,  65 
REFERENDUM,  90 
REPEALS 

form,  91  . 

general,  68 
position  in  hill,  28 

SALARIES  OF  STATE  OFFICERS 
constitutional  provision,  14 

SECTIONS 

division  of  hill  into,  28 
length,  28 
'  numbering,  29 

SENTENCES 
construction,  33 
detached  clauses,  34 


“SHALL”  AND  “MAY”,  53 

SHORT  TITLE,  26 

STATUTES 

problem  of  constructing,  7 

SUBJECT  MATTER,  ARRANGEMENT,  23 
definitions,  26 
emergency  clause,  27 
equal  provisions,  24 
leading  provisions,  24 
natural  sequence,  24,  27 
repeals,  28 
short  title,  26 

statement  of  legal  case,  26 

.  subordinate  provisions,  27 
take  effect  provision,  27 

SUB.JECT,  13 

salaries  of  state  officers,  14 
singleness,  13 

TAKE  EFFECT  PROVISION,  21,  27,  91 

TENSE,  40 

TITLE,  13,  15,  85 
amendatory,’  19,  85 
amendment  of  19,  87 
mention  in 
appropriation,  18 
penalties,  18 
referendum,  18 
rejieal,  18 
short,  26 

WHEN  LAM’S  TAKE  EFFECT,  21 
after  July  1,  21 
emergency,  21 


9 


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